FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES CLEM, 

No. 07-16764 Plaintiff-Appellant,

D.C. No.

v.  CV-05-02129-JKS

G. LOMELI,

OPINION Defendant-Appellee. 

Appeal from the United States District Court

for the Eastern District of California

James K. Singleton, District Judge, Presiding

Argued and Submitted

May 6, 2009—San Francisco, California

Filed June 2, 2009

Before: Procter Hug, Jr., Michael Daly Hawkins and

Richard C. Tallman, Circuit Judges.

Opinion by Judge Hawkins;

Concurrence by Judge Hug

6567
COUNSEL

Karen Kreuzkamp, Morrison & Foerster, LLP, San Francisco,

California, for the appellant. 

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

appellee. 

CLEM v. LOMELI 6569
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 (“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

6570 CLEM v. LOMELI
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

CLEM v. LOMELI 6571
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.

II. STANDARD OF REVIEW

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)).

III. DISCUSSION

“ ‘[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

1A Ninth Circuit Model Jury Instruction 11.10 (2001) formerly

instructed juries that prison officials could commit deliberate indifference

also “by failing to take reasonable measures to correct” a substantial risk

of serious harm. A 2007 revision to the model instructions eliminated the

failure-to-act language. See 9th Cir. Model Civ. Jury Instr. 9.25 (2007). 

6572 CLEM v. LOMELI
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)). 

A. Instructional Error

[1] “ ‘[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 (1994) (quoting Cortes-Quinones v. JimenezNettleship, 842 F.2d 556, 558 (1st Cir. 1988) (alterations

omitted); Rhodes v. Chapman, 452 U.S. 337, 347 (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.

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). 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 (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

CLEM v. LOMELI 6573
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

[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 (emphasis added).

2

“The use of a model jury instruction does not preclude a finding of

error.” Dang, 422 F.3d at 805 (internal quotations and alterations omitted)

(quoting United States v. Warren, 984 F.2d 325, 328 (9th Cir. 1993)). 

6574 CLEM v. LOMELI
[3] 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 Clem based on his legitimate “failure to act” theory of liability, standing alone. The jury charge therefore did not correctly state the law and thus did not “allow the jury to

determine the issues presented intelligently.” Fikes v. Cleghorn, 47 F.3d 1011, 1013 (9th Cir. 1995). 

[4] Clem is also correct that a failure to act instruction had

foundation in the evidence. There was evidence showing that

Lomeli heard Clem’s call for help immediately prior to his

beating, and that the officer took no steps to abate any risk to

Clem. Clem was therefore entitled to a “failure to act” instruction, and the district court erred in rejecting it. See Dang, 422

F.3d at 804-05. 

B. Prejudice from the Error

[5] “ ‘An error in instructing the jury in a civil case requires

reversal unless the error is more probably than not harmless.’ ” Id. at 811 (quoting Caballero v. City of Concord, 956

F.2d 204, 206 (9th Cir. 1992)). Because we “presume prejudice where civil trial error is concerned,” the “burden shifts

to the defendant to demonstrate that it is more probable than

not that the jury would have reached the same verdict had it

been properly instructed.” Id. (quotations and alterations

omitted) (quoting Galdamez, 415 F.3d at 1025). 

CLEM v. LOMELI 6575
Here, Lomeli cannot overcome the presumption against

him because he has failed to address prejudice in his answering brief, declining to advance any argument or identify any

evidence to support a harmless error finding. He has therefore

waived the argument. See United States v. Gamboa-Cardenas,

508 F.3d 491, 502 (9th Cir. 2007) (where appellees fail to

raise an argument in their answering brief, “they have waived

it” (citing United States v. Nunez, 223 F.3d 956, 958-59 (9th

Cir. 2000)). 

[6] Even setting aside the waiver issue, “it is more probable

than not that” the error here was prejudicial. Dang, 422 F.3d

at 811. At the outset, we have previously recognized that

when “the trial court erroneously add[s] an extra element to

[the plaintiff’s] burden of proof,” it is “unlikely that the error

would be harmless.” Caballero, 956 F.2d at 207. Here, the

instructions added an extra element to Clem’s burden of

proof: that some act of Lomeli had to be the “moving force”

that directly “caused the ultimate injury.” It is therefore “unlikely” the error was harmless. Id. 

[7] Prejudice is also generally more likely than not if “nothing about th[e jury’s] verdict indicates that the result would

have been the same without the error.” Id. Here, the entire

verdict consisted of the response “No” to the question, “[B]y

failing to remove him from Cell 115, was Defendant Lomeli

deliberately indifferent to a serious risk of harm to the plaintiff[?]” The trial court never explained to the jury, however,

what the words “deliberately indifferent” meant, despite that

they were the pivotal words on the jury verdict form. Because

we cannot determine one way or another whether the jury

understood “deliberate indifference” to include the affirmative

act element, we cannot say the verdict would have been the

same without the error. If the jury had been properly

instructed, it “may well have concluded that” Lomeli was liable to Clem for failing to abate the risk of harm from Godman. Dang, 422 F.3d at 812. Accordingly, we hold the error

was not harmless. 

6576 CLEM v. LOMELI
REVERSED AND REMANDED.

HUG, Circuit Judge, concurring: 

I add this concurrence to emphasize that model instruction

9.25, set forth in the 2007 edition of the Ninth Circuit’s Civil

Model Jury Instructions, does not adequately state the law and

should not be used by the district courts. The commentary to

the instruction correctly notes that the Supreme Court clearly

states in Farmer v. Brennan, 511 U.S. 825 (1994), that the

key inquiry in an Eighth Amendment conditions of confinement claim is whether the defendant acted with “deliberate

indifference.” Yet the model instruction itself (like the jury

instruction given in this case) never mentions or defines the

term “deliberate indifference.” 

The 2001 version of the Ninth Circuit’s Civil Model Jury

Instructions correctly focuses on the term “deliberate indifference” and explains what constitutes “deliberate indifference.”

Model instruction 11.10 states:

On the plaintiff’s Eighth Amendment conditions of

confinement claim, the plaintiff has the burden of

proving each of the following elements by a preponderance of the evidence: 

1. the defendant acted with deliberate

indifference; 

2. the defendant acted under color of law;

and 

3. the conduct of the defendant caused

harm to the plaintiff.

To establish deliberate indifference, the plaintiff

must prove that the defendant knew that the plaintiff

CLEM v. LOMELI 6577
faced a substantial risk of serious harm and disregarded that risk by failing to take reasonable measures to correct it. 

9th Cir. Model Civ. Jury Instr. 11.10 (2001). This older model

instruction makes clear that the appropriate inquiry focuses on

the “conduct” of the defendant, which includes the defendant’s “failure to act.” 

Had that instruction, or one that similarly explains the key

term of “deliberate indifference,” been given in this case, then

the interrogatory posed to the jury—“[B]y failing to remove

him from Cell 115, was Defendant Lomeli deliberately indifferent to a serious risk of harm to the plaintiff[?]”—and the

jury’s response thereto would have been meaningful. 

I can fully understand why the district judge in this case

was misled by following our new model jury instruction. The

purpose of this concurrence is to ensure that others do not rely

on this erroneous model instruction in the future.

6578 CLEM v. LOMELI