Instructions for Civil Rights Claims Under Section 1983 Numbering of Section 1983 Instructions 4.1 Section 1983 Introductory Instruction 4.2 Section 1983 – Burden of Proof 4.3 Section 1983 – Elements of Claim 4.4 Section 1983 – Action under Color of State Law 4.4.1 Section 1983 – Action under Color of State Law Is Not in Dispute 4.4.2 Section 1983 – Determining When an Official Acted under Color of State Law 4.4.3 Section 1983 – Determining Whether a Private Person Conspired with a State Official 4.5 Section 1983 – Deprivation of a Federal Right 4.6 Section 1983 – Liability in Connection with the Actions of Another 4.6.1 Section 1983 – Supervisory Officials 4.6.2 Section 1983 – Non-Supervisory Officials – Failure to Intervene 4.6.3 Section 1983 – Municipalities – General Instruction 4.6.4 Section 1983 – Municipalities – Statute, Ordinance or Regulation 4.6.5 Section 1983 – Municipalities – Choice by Policymaking Official 4.6.6 Section 1983 – Municipalities – Custom 4.6.7 Section 1983 – Municipalities – Liability Through Inadequate Training or Supervision 4.6.8 Section 1983 – Municipalities – Liability Through Inadequate Screening 4.7 Section 1983 – Affirmative Defenses 4.7.1 Conduct Not Covered by Absolute Immunity
4.7.2 Qualified Immunity 4.7.3 Release-Dismissal Agreement 4.8 Section 1983 – Damages 4.8.1 Compensatory Damages 4.8.2 Nominal Damages 4.8.3 Punitive Damages 4.9 Section 1983 – Excessive Force (Including Some Types of Deadly Force) – Stop, Arrest, or Other “Seizure” 4.9.1 Section 1983 – Instruction for GarnerType Deadly Force Cases – Stop, Arrest, or Other “Seizure” 4.10 Section 1983 – Excessive Force – Convicted Prisoner 4.11 Section 1983 – Conditions of Confinement – Convicted Prisoner 4.11.1 Section 1983 – Denial of Adequate Medical Care 4.11.2 Section 1983 – Failure to Protect from Suicidal Action 4.11.3 Section 1983 – Failure to Protect from Attack 4.12 Section 1983 – Unlawful Seizure 4.12.1 Section 1983 – Unlawful Seizure – Terry Stop and Frisk 4.12.2 Section 1983 – Unlawful Seizure – Arrest – Probable Cause 4.12.3 Section 1983 – Unlawful Seizure – Warrant Application 4.13 Section 1983 – Malicious Prosecution 4.13.1 Section 1983 – Burdens of Proof in Civil and Criminal Cases 4.14 Section 1983 – State-created Danger 4.15 Section 1983 – High-Speed Chase 4.16 Section 1983 – Duty to Protect Child in Foster Care
4.4.2 Section 1983 – Action under Color of State Law – Determining When an Official Acted under Color of State Law Model [Defendant] is an official of [the state of ] [the county of ] [the city of ]. However, [defendant] alleges that during the events at issue in this lawsuit, [defendant] was acting as a private individual, rather than acting under color of state law. For an act to be under color of state law, the person doing the act must have been doing it while clothed with the authority of the state, by which I mean using or misusing the authority of the state. You should consider the nature of the act, and the circumstances under which it occurred, to determine whether it was under color of state law. The circumstances that you should consider include: [Using bullet points, list any factors discussed in the Comment below, and any other relevant factors, that are warranted by the evidence.] You must consider all of the circumstances and determine whether [plaintiff] has proved, by a preponderance of the evidence, that [defendant] acted under color of state law. Comment “[S]tate employment is generally sufficient to render the defendant a state actor.” Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 935 n.18 (1982). In some cases, however, a government employee defendant may claim not to have acted under color of state law. Instruction 4.4.2 directs the jury to determine, based on the circumstances, whether such a defendant was acting under color of state law. Various factors may contribute to the conclusion concerning the presence or absence of action under color of state law. The court should list any relevant factors in Instruction 4.4.2. In the case of a police officer defendant, factors could include: Whether the defendant was on duty. This factor is relevant but not determinative. An off-duty officer who purports to exercise official authority acts under color of state law. Conversely, an officer who is pursuing purely private motives, in an interaction unconnected with his or her official duties, and who does not purport to exercise official authority does not act under color of state law.
4.6.2 Section 1983 – Liability in Connection with the Actions of Another – Failure to Intervene Model [Plaintiff] contends that [third person] violated [plaintiff’s] [specify right] and that [defendant] should be liable for that violation because [defendant] failed to intervene to stop the violation. [Defendant] is liable for that violation if plaintiff has proven all of the following four things by a preponderance of the evidence: First: [Third person] violated [plaintiff’s] [specify right]. Second: [Defendant] had a duty to intervene. [I instruct you that [police officers] [corrections officers] have a duty to intervene to prevent the use of excessive force by a fellow officer.] [I instruct you that prison guards have a duty to intervene during an attack by an inmate in the prison in which they work.] Third: [Defendant] had a reasonable opportunity to intervene. Fourth: [Defendant] failed to intervene. Comment A defendant can in appropriate circumstances be held liable for failing to intervene to stop a beating. See, e.g., Smith v. Mensinger, 293 F.3d 641, 650 (3d Cir. 2002) (holding that “a corrections officer's failure to intervene in a beating can be the basis of liability for an Eighth Amendment violation under § 1983 if the corrections officer had a reasonable opportunity to intervene and simply refused to do so,” and that “a corrections officer can not escape liability by relying upon his inferior or nonsupervisory rank visavis the other officers”); Bistrian v. Levi, 696 F.3d 352, 371 (3d Cir. 2012) (“extending [the Smith v. Mensinger] standard to inmate-on-inmate attacks”); Williams v. Fields, 2013 WL 4498670 (3d Cir., Aug 23, 2013) (non-precedential opinion) (reversing grant of judgment as a matter of law because jury could have “reasonably inferred” that officer “must have seen” the beating by other officers “and declined to intervene”).
Some sets of model instructions state explicitly that the jury must give deference to prison officials’ judgments concerning the appropriateness of force in a given situation. See 5th Circuit (Civil) Instruction 10.5; 9th Circuit (Civil) Instruction 11.9; O’Malley Instruction 166.23; Schwartz & Pratt Instruction 11.01.2. However, in Douglas v. Owens, 50 F.3d 1226 (3d Cir. 1995), the district court gave an instruction that omitted any explicit mention of deference, see id. at 1232 n.13 (quoting instruction), and the Court of Appeals held the instruction “was proper and adequate under the facts of this case” because the district court’s reference to “force . . . applied in a good faith effort to maintain or restore discipline” indicated to the jury that the defendants should not necessarily be held liable merely because they used force that “is later determined to have been unnecessary,” id. at 1233.
Court’s discussion in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989), relied on language in DeShaney stating that “[i]n the substantive due process analysis, it is the State's affirmative act of restraining the individual's freedom to act on his own behalf – through incarceration, institutionalization, or other similar restraint of personal liberty – which is the ‘deprivation of liberty’ triggering the protections of the Due Process Clause.” Ye, 484 F.3d at 640-41 (quoting DeShaney, 489 U.S. at 200). The Court of Appeals reasoned that just as an assurance that someone will be arrested does not meet the affirmative-act requirement, see Bright, 443 F.3d at 284, neither does a doctor’s assurance that the patient is fine, see Ye, 484 F.3d at 641-42. The Ye court recognized that the DeShaney opinion focused much of its attention on the “special relationship” theory of liability (as distinct from a state-created danger theory), see Ye, 484 F.3d at 641, which raises some question as to whether the “deprivation of liberty” concept should provide the template for judging all state-created danger claims. Perhaps for this reason, the Ye Court noted that “[t]he act that invades a plaintiff's personal liberty may not always be a restraint, as in the specialrelationship context.” Ye, 484 F.3d at 641 n.4. See, e.g., Phillips, 515 F.3d at 229, 243 (holding that complaint properly alleged statecreated danger claim where it alleged that 911 dispatchers gave their coworker confidential information that enabled him to locate and kill his exgirlfriend's current boyfriend). See the discussion of the second element, above, for a summary of Walter v. Pike County, 544 F.3d 182 (3d Cir. 2008), in which the plaintiffs’ claims failed because the defendants’ affirmative acts occurred at a time when the defendants did not (yet) have the requisite culpable state of mind.