Clem v. Lomeli
| Decision Date | 02 June 2009 |
| Docket Number | No. 07-16764.,07-16764. |
| Citation | 566 F.3d 1177 |
| Parties | James CLEM, Plaintiff-Appellant, v. G. LOMELI, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
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.
Opinion by Judge HAWKINS; Concurrence by Judge HUG.
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.
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 ("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.
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 of the defendant caused harm to the plaintiff." (Emphasis added).1
Over Clem's objection, the district court adopted Lomeli's proposed instructions, declining to give the "failure to act" instruction. The court additionally charged the jury that it could find for Clem only if an "act of the defendant deprived [Clem] of his particular rights," and that "[i]n order to establish that the act of defendant Lomeli deprived [Clem] of his particular rights ..., [Clem] must prove by a preponderance of the evidence that the act was so closely related to the deprivation of [Clem's] rights as to be the moving force that caused the ultimate injury."
Following a one-day trial, an eight-member jury found in favor of Lomeli. Clem timely appealed, arguing the jury instructions erroneously omitted a "failure to act" charge.
Because Clem "challenges the [district] court's [civil jury] instruction as an incorrect statement of the law," we review the instructions de novo. Dang v. Cross, 422 F.3d 800, 804 (9th Cir.2005) (citing Galdamez v. Potter, 415 F.3d 1015, 1021-22 (9th Cir.2005)).
"`[J]ury instructions must fairly and adequately cover the issues presented, must correctly state the law, and must not be misleading.'" Dang, 422 F.3d at 804 (quoting White v. Ford Motor Co., 312 F.3d 998, 1012 (9th Cir.2002)). Each party is therefore "`entitled to an instruction about his or her theory of the case if it is supported by law and has foundation in the evidence.'" Id. at 804-05 (quoting Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002)). A district court therefore commits error when it rejects proposed jury instructions that are properly supported by the law and the evidence. Id. "If, however, the error in the jury instruction is harmless, it does not warrant reversal." Id. at 805 (citing Tritchler v. County of Lake, 358 F.3d 1150, 1154 (9th Cir.2004)).
"`[P]rison officials have a duty [under the Eighth Amendment prohibition of cruel and unusual punishments] to protect prisoners from violence at the hands of other prisoners'" because "[b]eing violently assaulted in prison is simply not `part of the penalty that criminal offenders pay for their offenses against society.'" Farmer v. Brennan, 511 U.S. 825, 833-34, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (quoting Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir.1988) (alterations omitted); Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981)). "It is not, however, every injury suffered by one prisoner at the hands of another that translates into constitutional liability for prison officials responsible for the victim's safety." Id. at 834, 101 S.Ct. 2392. Instead, prison officials are liable under the Eighth Amendment only if they demonstrate "deliberate indifference" to "conditions posing a substantial risk of serious harm" to an inmate. Id. It is well settled that "[d]eliberate indifference occurs when `[an] official acted or failed to act despite his knowledge of a substantial risk of serious harm.'" Solis v. County of Los Angeles, 514 F.3d 946, 957 (9th Cir.2008) (emphasis added) (quoting Farmer, 511 U.S. at 841, 114 S.Ct. 1970). Thus, violations of the Eighth Amendment may occur as a result of either "a prison official's act or omission." Farmer, 511 U.S. at 834, 114 S.Ct. 1970 (emphasis added).
The instructions given misstated the law. The jury was told in Instruction 4 that it could find for Clem only if an "act of the defendant deprived [Clem] of his particular rights," and that "[i]n order to establish that the act of defendant Lomeli deprived [Clem] of his particular rights ..., [Clem] must prove by a preponderance of the evidence that the act was so closely related to the deprivation of [Clem's] rights as to be the moving force that caused the ultimate injury." Following this Circuit's current model civil jury instructions, the court gave Instruction 5:
In order to prove the defendant deprived the plaintiff of [his] Eighth Amendment right[s], the plaintiff must prove the following additional elements by a preponderance of the evidence:
1. the plaintiff faced a substantial risk of serious harm;
2. the defendant knew of that risk and disregarded it; and
3. the act of the defendant caused harm to the plaintiff.
(Emphasis added); see also 9th Cir. Model Civ. Jury Instr. 9.25 (2007).2
In order to find for Clem, the plain words of the instructions therefore required the jury to conclude that Lomeli took action in such a way that directly caused Clem's injuries. Farmer could not be more clear, however, that direct causation by affirmative action is not necessary: "a prison official may be held liable under the Eighth Amendment ... if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." 511 U.S. at 847, 114 S.Ct. 1970 (emphasis added).
Lomeli argues the instructions were nevertheless proper because "failing to abate" a substantial risk of serious harm is semantically the same as "disregarding" a substantial risk of serious harm. While that argument might have some traction, it is ultimately beside the point: the jury charge unambiguously instructed the jury that it had to find not only that Lomeli "disregarded" a substantial risk of serious harm, but also that Lomeli himself took action that directly "caused harm to the plaintiff" (by, for example, affirmatively placing Godman in the cell with knowledge that he would harm Clem). By improperly adding this extra element to Clem's burden, the instructions simply did not permit the jury to find for...
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