The Third Circuit recently posted new
Model Civil Jury Instructions, marked
"(June 2023)." The changes were to the Section 1983 Civil Rights Claims (Chapter 4), Employment Discrimination Claims Under Title VII (Chapter 5), Race Discrimination Claims Under 42 U.S.C. § 1981 (Chapter 6), Section 1983 Employment Claims (Chapter 7), Claims Under the Age Discrimination In Employment Act
(Chapter 8), and Employment Claims Under the Americans With Disabilities Act instructions (Chapter 9) instructions.
The changes to the Section 1983 Civil Rights Claims instructions (Chapter 4) are as follows:
The Comment to Instruction 4.3 (Section 1983 – Elements of Claim) now ends with a note regarding Campbell v. Pennsylvania School Boards Association, 972 F.3d 213 (3d Cir. 2020).
The Comment to Instruction 4.4 (Section 1983 – Action under Color of State Law) now notes Matrix Distributors, Inc. v. Nat’l Ass’n of Boards of Pharmacy, 34 F.4th 190, 195-96 (3d Cir. 2022) (explaining that it is necessary to show that a party acted under color of the law of some particular state or states).
The Comment to Instruction 4.6.2 (Section 1983 – Liability in Connection with the Actions of Another – Failure to Intervene) now notes Bistrian v. Levi, 696 F.3d 352, 371 (3d Cir. 2012) (“extending [the Smith v. Mensinger] standard to inmate-on-inmate attacks”), El v. City of Pittsburgh, 975 F.3d 327, 335-36 (3d Cir. 2020) (concluding that a defendant was entitled to summary judgment because the events occurred “within a matter of roughly five seconds,” and that “[g]iven the speed with which the incident ended, no reasonable jury could conclude that Lieutenant Kacsuta had a realistic and reasonable opportunity to intervene”), and Lozano v. New Jersey, 9 F.4th 239, 246 n.4 (3d Cir. 2021) (noting that the Court of Appeals has not extended failure-to-intervene liability to the false arrest context), and Weimer v. County of Fayette, Pennsylvania, 972 F.3d 177 (3d Cir. 2020).
The Comment to Instruction 4.6.2 (Section 1983 –
now discusses Mears v. Connolly, 24 F.4th 880, 885 (3d Cir. 2022), and Johnson v. City of Philadelphia, 975 F.3d 394, 402 (3d Cir. 2020).
The title to Instruction 4.6.4 now reads: "Section 1983 – Liability in Connection with the Actions of Another – Municipalities – Statute, Ordinance, Regulation,
or Official Policy." The Comment closes by noting that an official policy need not be in written form if sufficient evidence establishes its existence, citing Porter v. City of Philadelphia, 975 F.3d 374 (3d Cir. 2020).
The Comment to Instruction 4.6.5 (Section 1983 – Liability in Connection with the Actions of Another – Municipalities – Choice by Policymaking Official) also cites Porter.
The Comment to Instruction 4.7.1 (Section 1983 – Affirmative Defenses – Conduct Not Covered by Absolute Immunity) now notes that not every act by a legislator is entitled to absolute immunity, citing See HIRA Educational Services North America v. Augustine, 991 F.3d 180, 189-90 (3d Cir. 2021).
The Comment to Instruction 4.7.2 (Section 1983 – Affirmative Defenses – Qualified Immunity) now cites Weimer,
Starnes v. Butler County Court of Common Pleas, 971 F.3d 416 (3d Cir. 2020), Peroza-Benitez v. Smith, 994 F.3d 157 (3d Cir. 2021), Jacobs v. Cumberland County, 8 F.4th 187 (3d Cir. 2021); Clark v. Coupe, 55 F.4th 167, 182 (3d Cir. 2022), Taylor v. Riojas, 141 S. Ct. 52, 53 (2020), Dennis v. City of Philadelphia, 19 F.4th 279, 290 (3d Cir. 2021), El v. City of Pittsburgh, 975 F.3d 327 (3d Cir. 2020), Mack v. Yost, 63 F.4th 211, 232-33 (3d Cir. 2023), Rivas-Villegas v. Cortesluna, 142 S. Ct. 4 (2021), Lozano, Weimer, City of Tahlequah v. Bond, 142 S. Ct. 9, 12 (2021), Mammaro v. New Jersey Div. of Child Prot. & Permanency, 814 F.3d 164, 170 n.2 (3d Cir. 2016), District of Columbia v. Wesby, 138 S. Ct. 577, 591 n.8 (2018), Taylor v. Barkes, 135 S. Ct. 2042 (2015), Jefferson v. Lias, 21 F. 4th 74, 85-86 (3d Cir. 2021), HIRA Educational Services, Clark v. Coupe, 55 F.4th 167, 186 (3d Cir. 2022), Rivera v. Monko, 37 F.4th 909, 922 (3d Cir. 2022), and Diamond v. Pennsylvania State Education Association, 972 F.3d 262 (3d Cir. 2020).
The Comment to Instruction 4.9 (Section 1983 – Excessive Force (Including Some Types of Deadly Force) – Stop, Arrest, or other “Seizure”) now cites Lombardo v. City of St. Louis, 141 S. Ct. 2239, 2241 n.2 (2021), Bletz v. Corrie, 974 F.3d 306 (3d Cir. 2020), Jefferson, and El v. City of Pittsburgh.
The Comment to Instruction 4.10 (Section 1983 – Excessive Force – Convicted Prisoner) now cites Jacobs v. Cumberland County, 8 F.4th 187, 194 n.5 (3d Cir. 2021).
The Comment to Instruction 4.11.1 (Section 1983 – Conditions of Confinement – Convicted Prisoner – Denial of Adequate Medical Care) and 4.11.2 (Section 1983 – Conditions of Confinement – Convicted Prisoner – Failure to Protect from Suicidal Action)
now cite Clark v. Coupe.
The Comment to Instruction 4.12 (Section 1983 – Unlawful Seizure) now cites DeLade v. Cargan, 972 F.3d 207, 208 (3d Cir. 2020).
The Comment to Instruction 4.12.2 (Section 1983 – Unlawful Seizure – Arrest – Probable Cause) now cites United States v. Hurtt, 31 F.4th 152 (3d Cir. 2022), Harvard v. Cesnalis, 973 F.3d 190 (3d Cir. 2020), United States v. Nasir, 17 F.4th 459 (3d Cir. 2021).
The Comment to Instruction 4.12.3 (Section 1983 – Unlawful Seizure – Arrest – Warrant Application) now cites United States v. Williams, 974 F.3d 320, 352–53 (3d Cir. 2020).
A new third element has been added to Instruction 4.13 (Section 1983 – Malicious Prosecution): "The proceeding was initiated without probable cause." The fifth element has been amended as follows: "As a consequence of the proceeding, [plaintiff] suffered a significant deprivation of liberty consistent with the concept of
seizure. The Comment now cites Thompson v. Clark, 142 S. Ct. 1332, 1337 (2022), Lozano, Harvard v. Cesnalis, and adds a new section on "Seizure."
The Comment to Instruction 4.14 (Section 1983 – State-created Danger) now cites Mears.
The changes to the Employment Discrimination Claims Under Title VII instructions (Chapter 5) are as follows:
The Comment to Instruction 5.0 (Title VII Introductory Instruction) has a new section, "Discrimination on the Basis of Interracial Association."
The "Adverse Employment Action – General Considerations" section of the Comment to Instruction 5.1.1 (Elements of a Title VII Claim — Disparate Treatment — Mixed-Motive) now observes that "[recently], however, the Court held that being placed on 'surplus' status was equivalent to a notice of termination and would constitute an adverse action even if no layoff ultimately occurred."
The "Employer liability" section of the Comment to Instruction 5.1.3 (Elements of a Title VII Claim — Harassment — Quid Pro Quo) now notes O'Brien v. Middle E. Forum, 57 F.4th 110 (3d Cir. 2023). The "Unfulfilled threats" section now observes that "the
Ellerth/Faragher affirmative defense will be available unless the supervisor is a proxy for the employer."
The "Severe or Pervasive Activity" section of the Comment to Instruction 5.1.4 (Elements of a Title VII Action — Harassment — Hostile Work Environment — Tangible Employment Action) now has an extended note regarding Starnes v. Butler Cty. Court of Common Pleas, 971 F.3d 416, 427-29 (3d Cir. 2020).
The portion of Instruction 5.1.5 (Elements of a Title VII Claim — Harassment — Hostile Work Environment — No Tangible Employment Action) that follows the elements list, and the Comment have been substantially revised.
The Comment to Instruction 5.1.7 (Elements of a Title VII Claim — Retaliation) now cites Kengerski v. Harper, 6 F.4th 531, 536 (3d Cir. 2021).
The Comment to Instruction 5.2.1 (Title VII Definitions — Hostile or Abusive Work Environment) has a couple of notes regarding Nitkin v. Main Line Health, 67 F.4th 565, 571 (3d Cir. 2023).
The changes to the Race Discrimination Claims Under 42 U.S.C. § 1981 (Chapter 6) are as follows:
The notes that follow the elements section of Instruction 6.1.4 (Elements of a Section 1981 Claim — Harassment — Hostile Work Environment — No Tangible Employment Action) have been extensively rewritten. The Comment has been extensively rewritten as well.
The changes to the Section 1983 Employment Claims (Chapter 7) instructions are as follows:
Starnes v. Butler County Ct. of Com. Pleas, 971 F.3d 416, 426 (3d Cir. 2020), is now referenced in the Comments to Instruction 7.2 Section (1983 Employment Discrimination – Pretext), 7.3 (Section 1983 Employment Discrimination – Harassment), and 7.4 Employment (Discrimination – Retaliation – First Amendment).
The Comment to Instruction 7.4 also now references Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2424 (2022), Amalgamated Transit Union Local 85 v. Port Auth. of Allegheny Cnty., 39 F.4th 95, 103 (3d Cir. 2022), Dougherty v. School Dist. of Philadelphia, 772 F.3d 979, 989 (3d Cir. 2014), and Houston Community College System v. Wilson, 142 S. Ct. 1253 (2022).
The changes to the Claims Under the Age Discrimination In Employment Act instructions (Chapter 8) are as follows:
The notes that follow the elements section of Instruction 8.1.3 (Elements of an ADEA Claim — Harassment — Hostile Work Environment — No Tangible Employment Action) have been extensively rewritten. The Comment has been extensively rewritten as well.
The changes to the Employment Claims Under the Americans With Disabilities Act instructions (Chapter 9) are as follows:
The notes that follow the elements section of Instruction 9.1.5 (Elements of an ADA Claim — Harassment — Hostile Work Environment — No Tangible Employment Action) have been extensively rewritten. The Comment has been extensively rewritten as well.
The pre-2023 versions of these instructions are
archived here.