IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

DARRYLL McKENZIE,

Plaintiff,

v.

WALTER McNEIL, et al.,

Defendants.

Case No. 4:11-cv-45-RH/WCS

PLAINTIFF’S NOTICE OF FILING 

PROPOSED JURY INSTRUCTIONS

NOTICE IS HEREBY GIVEN that Plaintiff, through the undersigned attorney, files 

the attached proposed Jury Instructions.

I CERTIFY that the foregoing was filed electronically on 02/22/2012 and that the person 

noted below is registered to be notified by the CM/ECF electronic mail system:

Lance Eric Neff and Mark Hiers

Office of the Attorney General

The Capitol, PL 01

Tallahassee, FL 32399-1050

Lance.neff@myfloridalegal.com

Ginger Barry Boyd

Broad and Cassel

200 Grand Boulevard, Suite 205A

Destin, Florida 32550

gbarry@broadandcassell.com

s/JAMES V. COOK

Florida Bar Number 0966843

314 West Jefferson Street

Tallahassee, Florida 32301

(850) 222-8080; 561-0836 fax

cookjv@nettally.com

Case 4:11-cv-00045-RH-CAS Document 58 Filed 02/22/12 Page 1 of 14
Plaintiff’s Requested Instruction 1

In this case the Plaintiff claims that the Defendant, while acting "under color" of 

state law, intentionally deprived the Plaintiff of the Plaintiff's rights under the Constitution 

of the United States.

Specifically, the Plaintiff claims that while the Defendants were acting under color 

of state law as a Correctional Officers at Charlotte Correctional Institution, the 

Defendants intentionally violated the Plaintiff's constitutional right to be free of cruel and 

unusual punishment.

Under the Eighth Amendment to the Constitution of the United States, every 

person convicted of a crime or a criminal offense has the right not to be subjected to 

cruel and unusual punishment. This includes, of course, the right not to be assaulted 

or beaten without legal justification.

The law further provides that a person may sue in this Court for an award of 

money damages against anyone who, "under color" of any state law or custom, 

intentionally violates the Plaintiff's rights under the Constitution of the United States.

In order to prevail on this claim the Plaintiff must prove each of the following facts 

by a preponderance of the evidence:

Case 4:11-cv-00045-RH-CAS Document 58 Filed 02/22/12 Page 2 of 14
First: That the Defendants intentionally acted as follows:

Defendants Roundtree, Stephens, Ford, and Moore, or any one 

or combination of them used excessive force against Plaintiff 

McKenzie without a penological purpose.

Defendants Ragans, Derringer, Givens, and Swift, or any one or 

combination of them failed to intervene to prevent the 

unconstitutional use of force, though able to do so.

Defendant Singer was aware of the risk of harm to an inmate in 

Plaintiff McKenzie’s situation and failed to act to abate the risk.

Defendant Singer violated both Plaintiffs’ rights by failing to train 

or discipline the officers, or failing to institute necessary policies, 

thereby failing to abate or ratifying the above abusive practices.

Second: That the Defendants’ conduct amounted to the use of “excessive 

force” against the Plaintiff as hereafter defined

Third: That in so doing, Defendants acted under color of state law, and

Fourth: That the Defendants’ acts were the proximate or legal cause of 

an injury sustained by the Plaintiff.

Under the First Amendment to the Constitution of the United States, every citizen 

has the right not to suffer retaliation for the expression of protected speech.

In order to prevail on this First Amendment Retaliation claim, the Plaintiffs must 

prove each of the following facts by the greater weight of the evidence:

First: That the Defendants intentionally acted as follows:

Defendant Moore, either alone, or in concert with another, retaliated 

against Darryll McKenzie for his expression of protected speech 

either by the use of force, imposition of imposition of inhumane 

conditions of confinement, or any combination of these.

Defendant Ford, either alone, or in concert with another, retaliated 

against Darryll McKenzie for his expression of protected speech 

either by the use of force, imposition of imposition of inhumane 

conditions of confinement, or any combination of these.

Defendant Stephens, either alone, or in concert with another, 

retaliated against Darryll McKenzie for his expression of protected 

speech either by the use of force, imposition of imposition of 

inhumane conditions of confinement, or any combination of these.

Case 4:11-cv-00045-RH-CAS Document 58 Filed 02/22/12 Page 3 of 14
Defendant Roundtree, either alone, or in concert with another, 

retaliated against Darryll McKenzie for his expression of protected 

speech either by the use of force, imposition of imposition of 

inhumane conditions of confinement, or any combination of these.

Defendant Singer was aware of the risk of harm to an inmate in 

Plaintiff McKenzie’s situation and failed to act to abate the risk.

Defendant Singer violated both Plaintiffs’ rights by failing to train or 

discipline the officers, or failing to institute necessary policies, thereby 

failing to abate or ratifying the above abusive practices.

Second: That the Defendants’ conduct amounted to “First Amendment 

retaliation" against the Plaintiff as hereafter defined

Third: That in so doing, the Defendants acted under color of state law, and

Fourth: That the Defendants’ acts were the proximate or legal cause of the 

damages sustained by the Plaintiffs.

In the verdict form that I will explain in a moment, you will be asked to answer a 

series of questions concerning each of these factual issues.

The parties have stipulated or agreed that the Defendants acted "under color" of 

state law and you should, therefore, accept that fact as proven.

The constitutional right to be free of cruel and unusual punishment includes the 

right not to be subjected to excessive force while being detained in custody by a law 

enforcement or corrections officer. On the other hand, not every push or shove, even if it 

later seems unnecessary, will give rise to a constitutional violation; and an officer always 

has the right, and the duty, to use such reasonable force as is necessary under the 

circumstances to maintain order and assure compliance with prison regulations. 

Whether or not any force used in this instance was excessive is an issue for you to 

decide on the basis of whether such force, if any, was applied in a good faith effort to 

maintain or restore discipline, or maliciously and sadistically to cause harm. In making 

Case 4:11-cv-00045-RH-CAS Document 58 Filed 02/22/12 Page 4 of 14
that decision you should consider the amount of force used in relationship to the need 

presented; the motive of the officer; the extent of the injury inflicted; and any effort made 

to temper the severity of the force used. Of course, when prison officials maliciously and 

sadistically use force to cause harm, the result would be cruel and unusual punishment 

regardless of the injury to the inmate.

If you should find for the Plaintiff and against the Defendant, you must then 

decide the issue of the Plaintiff's damages. For damages to be the proximate or legal 

result of a constitutional deprivation, it must be shown that, except for that constitutional 

deprivation, such damages would not have occurred.

In considering the issue of the Plaintiff's damages you should assess the amount 

you find to be justified by a preponderance of the evidence as full, just and reasonable 

compensation for all of the Plaintiff's damages, no more and no less. Compensatory 

damages are not allowed as a punishment and must not be imposed or increased to 

penalize the Defendant. Also, compensatory damages must not be based on 

speculation or guesswork because it is only actual damages that are recoverable.

On the other hand, compensatory damages are not restricted to actual loss of 

time or money; they cover the physical aspects of injury. Thus, no evidence of the value 

of physical pain has been or need be introduced. In that respect it is not value you are 

trying to determine, but an amount that will fairly compensate the Plaintiff for those 

claims of damage. There is no exact standard to be applied; any such award should be 

fair and just in the light of the evidence.

You should consider the following elements of damage, to the extent you find 

them proved by a preponderance of the evidence, and no others:

Case 4:11-cv-00045-RH-CAS Document 58 Filed 02/22/12 Page 5 of 14
(a) Physical pain and suffering;

(b) Emotional injury if accompanied by more than 

minimal physical injury;

(c) Punitive damages, if any.

The Plaintiff also claims that the acts of the Defendant were done with malice or 

reckless indifference to the Plaintiff's federally protected rights so as to entitle the 

Plaintiff to an award of punitive damages in addition to compensatory damages.

If you find for the Plaintiff, and if you further find that the Defendant did act with 

malice or reckless indifference to the Plaintiff’s federally protected rights, the law would 

allow you, in your discretion, to assess punitive damages against the Defendant as 

punishment and as a deterrent to others.

If you find that punitive damages should be assessed against the Defendant, you 

may consider the financial resources of the Defendant in fixing the amount of such 

damages and you may assess punitive damages against one or more of the 

Defendants, and not others, or against more than one Defendant in different amounts.

Authority: Eleventh Circuit Pattern Jury Instructions

Instruction 2.3.1

Given: ___________

Refused: ___________

Modified: ___________

Case 4:11-cv-00045-RH-CAS Document 58 Filed 02/22/12 Page 6 of 14
Plaintiff’s Requested Instruction 2

Inhumane Conditions

Under the Eighth Amendment, the pertinent inquiry is (1) whether there has been 

an infliction or a deprivation of the basic human needs, such as adequate food, clothing, 

shelter, sanitation, or medical care, and (2) if so, whether prison officials acted with the 

requisite culpable intent such that the infliction of pain is unnecessary and wanton.

In prison condition cases, prison officials act with the requisite culpable intent 

when they act with deliberate indifference to an inmate’s suffering.

Similarly, conduct by jail officials is punishment in violation of the Fourteenth 

Amendment only if prison officials act with deliberate indifference to the inmate’s needs. 

The test for whether a prison or jail official acts with deliberate indifference is a 

subjective one: the official must know of and disregard an excessive risk to inmate 

health or safety, the official must both be aware of the facts from which the inference 

could be drawn that a substantial risk of serious harm exists, and he must also draw 

that inference.

Authority: Anderson v. County of Kern, 45 F.3d 1310,1312-13(9th Cir. 1995); 

Redman v. County of San Diego, 942 F.2d 1435, 1440, 1441-43 (9th 

Cir.)(en banc), cert. denied, 502 U.S. 1074, 112 S.Ct. 972, 117 L.Ed. 2d

137 (1991); Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 1977, 

1979, 128 L.Ed. 2d 811 (1994); Wilson v. Seiter, 501 U.S. 294, 302-03, 

111 S.Ct. 2321, 2326-27, 115 L.Ed. 2d 271 (1991); Jordan v. Gardner, 986 

F.2d 1521, 1528 (9th Cir. 1993)(en banc); Hallstrom v. Garden City, 991 

F.2d 1473, 1485 (9th Cir.)(applying Redman to conditions of confinement), 

cert. denied, 510 U.S. 991, 114 S.Ct. 549, 126 L.Ed. 2d 450 (1993).

Given: ___________

Refused: ___________

Modified: ___________

Case 4:11-cv-00045-RH-CAS Document 58 Filed 02/22/12 Page 7 of 14
Plaintiff’s Requested Instruction 3

Failure to Treat

In this case the Plaintiff claims that the Defendant, Steven Singer, while acting 

"under color" of state law, intentionally violated the Plaintiff's rights under the 

Constitution of the United States.

Specifically, the Plaintiff claims that while the Defendant was acting under color of 

state law as an employee of Columbia Correctional Institution the Defendant 

intentionally violated the Plaintiff's right not to be subjected to cruel and unusual 

punishment under the Eighth Amendment to the Constitution.

More specifically, the Plaintiff claims that the Defendant was deliberately 

indifferent to the Plaintiff's serious medical needs.

Under the Eighth Amendment anyone who is convicted and detained under state

law is entitled to necessary medical care, and a corrections employee would violate that 

right if the officer is deliberately indifferent to an inmate's serious medical need. Stated 

another way, to be deliberately indifferent to an inmate’s serious medical need amounts 

to the imposition of cruel and unusual punishment in violation of the Eighth Amendment.

A "serious medical need" is one that has been diagnosed by a physician as 

requiring treatment, or one that is so obvious that even a lay person would easily 

recognize the necessity for prompt medical attention.

Notice, however, that deliberate or intentional conduct on the part of the 

corrections employee is required before any violation of the Constitution occurs. Mere 

negligence or a lack of reasonable care on the part of the employee is not enough; the 

Plaintiff must prove deliberate and intentional conduct resulting in a deprivation of the 

Plaintiff's constitutional rights through the infliction of cruel and unusual punishment.

Case 4:11-cv-00045-RH-CAS Document 58 Filed 02/22/12 Page 8 of 14
In order to establish his claim, therefore, the Plaintiff must prove each of the 

following facts by a preponderance of the evidence:

First: That the Plaintiff had a “serious medical

need,” as previously defined;

Second: That the Defendant was aware of the Plaintiff’s 

serious medical need;

Third: That the Defendant with deliberate

indifference, failed to provide the necessary medical 

care;

Fourth: That in so doing the Defendant acted

“under color” of state law; and

Fifth: That the Defendant’s acts were the

proximate or legal cause of the damages sustained by 

the Plaintiff.

In the verdict form that I will explain in a moment, you will be asked to answer a 

series of questions concerning each of these factual issues.

With regard to the fourth required element of proof – that the Defendant acted 

"under color" of state law – that fact is not disputed in this case and you may accept that 

fact as proved.

With regard to the fifth required element of proof -- that the Defendant's acts were 

the proximate or legal cause of damages sustained by the Plaintiff -- remember that for 

damages to be the proximate or legal result of a constitutional deprivation, it must be 

shown that, except for the constitutional deprivation, such damages would not have 

occurred.

If you find for the Plaintiff and against the Defendant, you will then consider the 

Plaintiff's claim for damages.

In considering the issue of the Plaintiff's damages, you should assess the amount 

Case 4:11-cv-00045-RH-CAS Document 58 Filed 02/22/12 Page 9 of 14
you find to be justified by a preponderance of the evidence as full, just and reasonable 

compensation for all of the Plaintiff's damages, no more and no less. Compensatory 

damages are not allowed as a punishment and must not be imposed or increased to 

penalize the Defendant. Also, compensatory damages must not be based on 

speculation or guesswork because it is only actual damages that are recoverable.

On the other hand, compensatory damages are not restricted to actual loss of 

time or money; they also cover both the mental and physical aspects of Plaintiff’s injury 

- - tangible and intangible. Thus, no evidence of the value of such intangible things as 

physical and emotional pain and mental anguish has been or need be introduced. In 

that respect it is not value you are trying to determine, but an amount that will fairly 

compensate the Plaintiff for those claims of damage. There is no exact standard to be 

applied; any such award should be fair and just in the light of the evidence.

You should consider the following elements of damage, to the extent you find 

them proved by a preponderance of the evidence, and no others:

(a) Physical as well as emotional pain and 

mental anguish.

(b) Nominal damages (as explained in these 

instructions);

(c) Punitive damages, if any (as explained in 

these instructions).

The Plaintiff also claims that the acts of the Defendant were done with malice or 

reckless indifference to the Plaintiff's federally protected rights so as to entitle the 

Plaintiff to an award of punitive damages in addition to compensatory damages.

If you find for the Plaintiff, and if you further find that the Defendant did act with 

malice, or reckless indifference to the Plaintiff’s federally protected rights, the law would 

Case 4:11-cv-00045-RH-CAS Document 58 Filed 02/22/12 Page 10 of 14
allow you, in your discretion, to assess punitive damages against the Defendant as 

punishment and as a deterrent to others.

If you find that punitive damages should be assessed against the Defendant, you 

may consider the financial resources of the Defendant in fixing the amount of such 

damages and you may assess punitive damages against one or more of the 

Defendants, and not others, or against more than one Defendant in different amounts.

Authority: Eleventh Circuit Pattern Jury Instructions

Instruction 2.3.2

Given: ___________

Refused: ___________

Modified: ___________

Case 4:11-cv-00045-RH-CAS Document 58 Filed 02/22/12 Page 11 of 14
Plaintiff’s Requested Instruction 4

Spoliation

In this case, the escort off the wing was not videotaped, although the officers had 

the means to do so. Therefore, no record exists of the movement of Mr. McKenzie from 

Wing 2 to Wing 3. Even as to an issue on which the plaintiff normally has the burden of 

proof, it would be inappropriate to rule that defendants should prevail where they have 

made proof impossible.

This Jury may infer that the evidence that was not preserved would have been 

adverse to the defendants if it had been brought into court. The Jury does not need to 

find that the party that failed to preserve the evidence acted with malice in order to draw 

an adverse inference against that party.

Authority: Patterson v. Coughlin, 905 F.2d 564, 570 (2d Cir. 1990)

Swofford v. Eslinger, 671 F.Supp.2d 1274 (11th Cir. 2009)

Given: ___________

Refused: ___________

Modified: ___________

Case 4:11-cv-00045-RH-CAS Document 58 Filed 02/22/12 Page 12 of 14
Plaintiff’s Requested Instruction 5

The Plaintiff also claims that the acts of the Defendant were done with malice or 

reckless indifference to the Plaintiff's federally protected rights so as to entitle the 

Plaintiff to an award of punitive damages in addition to compensatory damages.

If you find for the Plaintiff, and if you further find that the Defendant did act with 

malice or reckless indifference to the Plaintiff’s federally protected rights, the law would 

allow you, in your discretion, to assess punitive damages against the Defendant as 

punishment and as a deterrent to others.

When assessing punitive damages, you must be mindful that punitive damages 

are meant to punish the Defendant for the specific conduct that harmed the Plaintiff in 

the case and for only that conduct. For example, you cannot assess punitive damages 

for the Defendant being a distasteful individual or business. Punitive damages are 

meant to punish the Defendant for this conduct only and not for conduct that occurred at 

another time. Your only task is to punish the Defendant for the actions [it] [he] [she] took 

in this particular case.

If you find that punitive damages should be assessed against the Defendant, you 

may consider the financial resources of the Defendant in fixing the amount of such 

damages [and you may assess punitive damages against one or more of the 

Defendants, and not others, or against more than one Defendant in different amounts].

Authority: Eleventh Circuit Pattern Jury Instructions

Instruction 2.1

Given: ___________

Refused: ___________

Modified: ___________

Case 4:11-cv-00045-RH-CAS Document 58 Filed 02/22/12 Page 13 of 14
Plaintiff’s Requested Instruction 6

If you find for the Plaintiff you must not take into account any consideration of 

attorneys fees or court costs in deciding the amount of Plaintiff’s damages. The matter 

of attorney’s fees and court costs will be decided later by the Court.

Authority: Eleventh Circuit Pattern Jury Instructions

Instruction 6.1

Given: ___________

Refused: ___________

Modified: ___________

Case 4:11-cv-00045-RH-CAS Document 58 Filed 02/22/12 Page 14 of 14