The Eighth Circuit has posted the
2020 revision to its Manual of Model Civil Jury Instructions. Most of the revisions were to Chapter 4 (civil rights actions brought by prisoners under 42 U.S.C. § 1983). There are no references to Bostock (to see which circuit instructions have referenced Bostock, see the entry in the
trialdex federal jury instructions index).
The changes are as follows:
Instruction 4.00, the Overview to the PRISONER/PRETRIAL DETAINEE CIVIL RIGHTS CASES chapter no longer just lists the contents. It is now a four-page summary of the law.
New Instruction 4.01 (§ 1983 CLAIM-INTRODUCTORY INSTRUCTION)
The title to Instruction 4.20 now reads DEFINITION: UNDER COLOR OF STATE LAW
(42 U.S.C. § 1983).
The Instruction now reads:
[(If the parties dispute that the action was under color of state law):
Acts are done under color of law when a person acts or [falsely appears] [falsely claims] [purports] to act in the performance of official duties under any state, county or municipal law, ordinance or regulation.]
[(If the parties stipulate that the action was under color of state law):
In this case the parties have stipulated [agreed] that Defendant [name] acted "under color" of state law, and you must accept that fact as proved.]
The Committee Comments on the instruction have been thoroughly rewritten.
The title to Instruction 4.21 now reads DEFINITION: PERVASIVE SUBSTANTIAL RISK OF SERIOUS HARM - CONVICTED PRISONERS (42 U.S.C. § 1983).
The Instruction now reads:
A pervasive substantial risk of serious harm exists
is present when (violent acts) (sexual assaults) occur with sufficient frequency that a
prisoner or prisoners are put in reasonable fear for their safety, and faces an objectively intolerable risk of harm such that prison officials are aware of cannot argue that they were subjectively blameless for the problem and resulting harm to the need for protective measures prisoner.
The Committee Comments on the instruction have been thoroughly rewritten.
The phrase "CONVICTED PRISONERS (42 U.S.C. § 1983)" is no longer in the title to Instruction 4.22. The Committee Comments on the instruction have been thoroughly rewritten.
The phrase "CONVICTED PRISONERS AND PRETRIAL DETAINEES (42 U.S.C. § 1983)" is no longer in the title to Instruction 4.23. The Instruction now reads:
Deliberate indifference is established only if there is actual knowledge of a [here describe the substantial risk that the plaintiff (describe serious medical problem or other of serious harm that the defendant is expected to prevent) or serious medical need of] the plaintiff and if the defendant disregards that [risk or need] by intentionally refusing or intentionally failing to take reasonable measures to deal with the problem. Negligence or inadvertence does not constitute deliberate indifference.
The Comment deletes the discussion of Butler v. Fletcher, 465 F.3d 340 (8th Cir. 2006), citing three more recent cases instead.
The Comment to Instruction 4.24 (DEFINITION: MALICIOUSLY) substitutes a citation to Levine v. Roebuck, 550 F.3d 684 (8th Cir. 2008) for the former citation to the Black's Law Dictionary.
The Comment to Instruction 4.25 (DEFINITION: SADISTICALLY) now cites United States v. Miller, 477 F.3d 644 (8th Cir. 2007).
The title to Instruction 4.40 now deletes the reference to "FOURTH AMENDMENT." The Instruction adds a citation to Corpus v. Bennett, 430 F.3d 912 (8th Cir. 2005). The Comments have been substantially rewritten.
The title to Instruction 4.41 now deletes the reference to "FIFTH AND FOURTEENTH AMENDMENTS."
The second half of the Committee Comment has been substantially rewritten.
The title to Instruction 4.42 now deletes the reference to "EIGHTH AMENDMENT." The Comment formerly recommended that "an instruction not be given on qualified immunity based on defendant's good faith." That admonition has been deleted, and the Comment now has an extended discussion of qualified immunity.
The title to Instruction 4.43 now deletes the reference to "CONVICTED PRISONERS AND PRETRIAL DETAINEES (42 U.S.C. § 1983)." The Comments have been extensively rewritten.
The title to Instruction 4.44 now deletes the reference to "SPECIFIC ATTACK - CONVICTED PRISONERS - EIGHTH AMENDMENT (Including Pretrial Detainees - Fourteenth Amendment)." The first element now ends "and the Plaintiff was incarcerated under conditions posing a substantial risk of serious harm."
The Comment clarifies that the change was occasioned by Glaze v. Byrd, 721 F.3d 528 (8th Cir. 2013).
The first element of Instruction 4.45 now indicates an alternative cause of action for filing a grievance, and the paragraph at the end that begins "The [filing of a § 1983 claim] was a 'determining factor'" has been deleted. The Notes on Use and the Comment have been extensively rewritten.
Instructions 4.46 (ELEMENTS OF CLAIM: CONDITIONS OF CONFINEMENT), 4.47 (ELEMENTS OF CLAIM: SUPERVISORY LIABILITY-FAILURE TO TRAIN OR SUPERVISE), 4.48 (ELEMENTS OF CLAIM: MUNICIPAL LIABILITY FOR OFFICIAL POLICY OR UNOFFICIAL CUSTOM), 4.49 (FRAUDULENTLY OBTAINED WARRANT), 4.50 (ELEMENTS OF CLAIM: UNREASONABLE STOP), 4.51 (ELEMENTS OF CLAIM: FALSE ARREST), and 4.52 (ELEMENTS OF CLAIM: § 1983 CIVIL CONSPIRACY) are new.
The Comment to Instruction 4.70 (DAMAGES: ACTUAL - PRISONER CIVIL RIGHTS) now notes that compensatory damages based on emotional distress can be awarded even though no actual damages are proven.
The Comment to Instruction 4.71 (DAMAGES: NOMINAL - PRISONER CIVIL RIGHTS) adds this passage at the end:
See Williams v. Hobbs, 662 F.3d 994, 1010 (8th Cir. 2011). Nominal damages may be awarded on a per violation basis, but not a per day basis. If a jury finds that the constitutional violation at issue was not a direct cause of injury to a plaintiff yet makes a substantial "nominal" damage award, the district court must reduce the damage award to a legally nominal sum as a matter of law. See Corpus v. Bennett, 430 F.3d 912, 915-16 (8th Cir. 2005) (Where jury found that officer's use of excessive force did not cause injuries to plaintiff but found $75,000 was the nominal sum that would fairly and adequately compensate plaintiff for the deprivation of his constitutional rights, trial court did not err in reducing the nominal damages award to one dollar).
The Notes to Instruction 4.72 (DAMAGES: PUNITIVE - CIVIL RIGHTS) now cites Bryant v. Jeffrey Sand Company, 919 F.3d 520 (2019).
Instruction 7.21 (DEFINITION: WILLFULNESS) is new.
The second element in Instruction 7.80 (GENERAL VERDICT FORM) now asks whether the defendant's conduct was willful. It used to ask "Has it been proved that the defendant either knew it was violating the Equal Pay Act or acted with reckless disregard of the Equal Pay Act?"
Instruction 9.00 (AMERICANS WITH DISABILITIES ACT - OVERVIEW) adds case notes regarding Oehmke v. Medtronic, Inc., 844 F.3d 748 (8th Cir. 1995), Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996 (8th Cir. 2012), and Rozmiarek v. Walmart Stores, Inc., 2018 WL 4854181 (D. Neb. 2018), to its discussion of causation. It also adds citations to Lipp v. Cargill Meat Sols. Corp., 911 F.3d 537, 544-45 (8th Cir. 2018) (noting that regular and reliable attendance is an essential function in most jobs), Moses v. Dassault Falcon Jet-Wilmington Corp., 894 F.3d 911, 923-24 (8th Cir. 2018) (explaining a disabled plaintiff was not a "qualified individual," as he was unable to perform essential job functions and "no known modifications" of such functions existed for his job), Faulkner v. Douglas County, 906 F.3d 728, 732-34 (8th Cir. 2018) (employer not obligated to violate a collective bargaining agreement to create a reasonable job accommodation), and Faulkner v. Douglas County, 906 F.3d 728, 732-34 (8th Cir. 2018) (employer not obligated to violate a collective bargaining agreement to create a reasonable job accommodation).
Instruction 15.00 (EMPLOYMENT - FEDERAL EMPLOYERS' LIABILITY ACT - OVERVIEW) now notes the holding in Norfolk S. Ry. Co. v. Sorrell, 549 U.S. 158 (2007), regarding causation. It also excises a reference to Wilkerson v. McCarthy, 336 U.S. 53 (1949), substituting a note regarding Consolidated Rail Corp. v. Gottshall, 512 U.S. 532 (1994).
The ending paragraph in Note 2 and first paragraph of Note 3 for Instruction 15.40 (ELEMENTS OF CLAIM: GENERAL FELA NEGLIGENCE) has been rewritten:
Sometimes employees of one company work on property or equipment owned by a railroad. In such situations, the individual can be Generally speaking, the plaintiff may be said to be employed by the railroad
for FELA purposes if the railroad controlled or had the right to control the plaintiff's work. The passing of information and other coordinated efforts between employees of the two companies are not alone enough to satisfy this test. To find that the plaintiff was employed by the railroad, the railroad's employees must have had a supervisory role over the plaintiff's work. See Royal v. Mo. & N. Ark. R.R. Co., 857 F.3d 759, 763-64 (8th Cir. 2017); Vanskike v. ACF Industries, Inc., 665 F.2d 188, 198-99, 200-02 (8th Cir. 1981).
3. It may be argued that the plaintiff, even though employed by the railroad, was not acting within the scope of his or her railroad that employment at the time of the incident. If there is a question whether the employee was acting within the scope of employment, paragraph First should provide as follows:
The Comment has been substantially rewritten.
The Notes for Instruction 15.41 (ELEMENTS OF CLAIM: LOCOMOTIVE INSPECTION ACT VIOLATION), 15.42 (ELEMENTS OF CLAIM: SAFETY APPLIANCE ACT VIOLATION), and 15.43 (ELEMENTS OF CLAIM: VIOLATION OF REGULATION ENACTED FOR THE SAFETY OF RAILROAD EMPLOYEES) now note that "[g]enerally speaking, the plaintiff may be said to be employed by the railroad for FELA purposes if the railroad controlled or had the right to control the plaintiff's work."
Instruction 16.22 (DEFINITION: WILLFULNESS) is new.
The second element in Instruction 16.72 (DAMAGES: WILLFUL VIOLATION) now asks whether the defendant's failure to pay was willful. It used to ask whether its conduct was "prohibited by the Fair Labor Standards Act or showed reckless disregard for whether its conduct was prohibited by the Fair Labor Standards Act?"
Instruction 17.72 (DAMAGES: PUNITIVE) has been substantially rewritten.