IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

TYLER J. KEUP,

v.

))

Plaintiff, ))))

4:05CV3208

FINAL JURY INSTRUCTIONS

F. X. HOPKINS, et al., ))

Defendants. ) )

INSTRUCTION NO. 1

DUTY

It will be your duty to decide from the evidence whether the plaintiff is entitled to a

verdict against the defendants. From the evidence, you will decide what the facts are.

You are entitled to consider the evidence in the light of your own observations and

experiences in life. You may use reason and common sense to draw deductions from

facts established by the evidence. You will then apply those facts to the law which I give

you in these and the other instructions. In that way, you will reach your verdict. You are

the sole judges of the facts; but you must follow the law as stated in my instructions,

whether you agree or disagree with the law stated in the instructions.

Do not allow sympathy or prejudice to influence you. The law requires that your

verdict be unaffected by anything except the evidence, your common sense, and the law

stated in these and other instructions.

Anything that I may say or do during the trial must not be taken by you as an

indication of what I think of the evidence or what I think your verdict should be.

INSTRUCTION NO. 2

EVIDENCE

The word "evidence" includes the testimony of witnesses; documents and other

things received as exhibits; any facts that have been stipulated, that is, formally agreed

to by the parties; and any facts that have been judicially noticed, that is, facts which I say

you must accept as true.

The following things are not evidence:

1. Statements, arguments, questions and comments by lawyers

are not evidence.

2. Objections are not evidence.

Lawyers have an obligation to their clients to object when they believe that the

evidence being offered is improper under the rules of evidence. You should not be

influenced by the lawyer’s objection or by my ruling on it. If I sustain an objection to a

question, ignore the question. If I overrule the objection, treat the answer like any other

answer. If so, do not attempt to draw any inference in favor of either side as the result of

any ruling I make. Finally, if I instruct you that some item of evidence is received for a

limited purpose only, you must follow that instruction. Pay particularly close attention to

this sort of limiting instruction, because it may not be available to you in writing later in

the jury room.

3. Testimony that I strike from the record or tell you to disregard

is not evidence and must not be considered.

4. Anything you see or hear about this case outside this courtroom is

not evidence and must be disregarded.

Finally, some of you may have heard the phrases or terms "direct evidence" and

"circumstantial evidence." Direct evidence is direct proof of a fact, such as testimony by

an eye witness. Circumstantial evidence is proof of facts from which you may infer or

conclude that other facts exist. The law makes no distinction between the weight to be

given to either direct or circumstantial evidence. You should give the evidence the

weight that you believe the evidence is entitled to receive.

INSTRUCTION NO. 3

BENCH CONFERENCES AND RECESSES

During the trial it may become necessary for me to talk with the lawyers outside

your hearing, either by having a bench conference while you are present in the

courtroom, or by calling a recess. Please understand that while you are waiting, the

court and counsel are working. The purpose of these conferences is to decide how

certain evidence is to be treated under the rules of evidence or to decide a particular

procedure to be followed in the case. We will, of course, do what we can to minimize

the number and length of these conferences.

INSTRUCTION NO. 4

JURY QUESTIONS

While evidence is being presented, you are not allowed to raise your hands to

ask questions about that evidence. However, if you do have questions about something

you hear during the examination of a witness, you may write your questions down on a

piece of paper. When attorneys have finished examining that witness, you may

submit your written question or questions. I will review each question with the attorneys.

You may not receive an answer to your question because I may decide that the question

is not proper under the rules of evidence. The attorneys may choose to answer your

questions by asking more questions of the witness. But even if the question is proper,

you may not get an immediate answer to your question. For instance, a witness or an

exhibit that you will see later in the trial may answer your question.

INSTRUCTION NO. 5

NOTE-TAKING

If you wish, you may take notes to help you remember what witnesses said.

Notes may be helpful to you because at the end of the trial, you must make your

decision based on what you recall of the evidence. You will not have a written transcript

to consult, and it may not be practical for the court reporter to read back lengthy

testimony. Therefore, you should pay close attention to the testimony as it is given.

If you do take notes, please keep them to yourself until you and the other jurors

go to the jury room to decide this case. However, do not let note-taking distract you to

the point that you miss hearing other testimony from the witness.

During the trial, documents or other physical items may be received into

evidence. At the present, however, you will not be supplied with a list of exhibits which

are received in evidence. Therefore, you may wish to make notes about the exhibits,

especially their description and number, so that you can refer to those exhibits while you

are deliberating.

When we take our recess each day for the lunchtime break and when we take our

recess each night, please take your notes to the jury room and leave your notes there.

The courtroom deputy will take custody of your notes and secure them.

No one will read your notes but you. Your notes will be destroyed after the trial is

over.

INSTRUCTION NO. 6

ALL PERSONS ARE EQUAL BEFORE THE LAW

This case should be considered and decided by you as an action between

persons of equal standing and worth in the community, persons holding the same or

similar position in life. All persons stand equal before the law, and therefore must be

treated as equals in a court of justice.

INSTRUCTION NO. 7

PREPONDERANCE OF EVIDENCE

Your verdict depends on whether you find certain facts have been proven. The

burden of proving a fact is upon the party whose claim or defense depends on that fact.

The party who has the burden of proving a fact must prove it by the greater weight of the

evidence, also known as a “preponderance of the evidence.”

By a "preponderance of the evidence," I mean the greater weight of credible

evidence. This is not determined by which party has the greater number of witnesses

testifying about the facts and circumstances or by the number of exhibits.

Preponderance of the evidence is determined by the amount of evidence which on the

whole, when fully, fairly and impartially considered, makes the stronger impression on

your mind and is more convincing as to its truth when weighed against the evidence the

other party has presented.

To prove something by a preponderance of evidence is to prove that it is more

likely true than not. Each party is entitled to the benefit of any evidence tending to

establish a claim, even though the other party introduced that evidence. If the evidence

is equally balanced, a preponderance is not established.

You may have heard the term “proof beyond a reasonable doubt.” That is a

stricter standard that applies in criminal cases. It does not apply in civil cases such as

this one. You should, therefore, put the term out of your minds.

INSTRUCTION NO. 8

WITNESSES

In deciding what the facts are, you may have to decide what testimony you

believe and what testimony you do not believe. You may believe all of what a witness

said, or only part of it, or none of it.

In deciding what testimony to believe, consider the witness’s intelligence, the

opportunity the witness had to have seen or heard the things testified about, the

witness’s memory, any motives that witness may have for testifying a certain way, the

manner of the witness while testifying, whether that witness said something different at

an earlier time, the general reasonableness of the testimony, and the extent to which

the testimony is consistent with any evidence that you believe.

In deciding whether or not to believe a witness, keep in mind that people

sometimes hear or see things differently and sometimes forget things. You need to

consider therefore whether a contradiction is an innocent misrecollection or lapse of

memory or an intentional falsehood, and that may depend on whether it has to do with

an important fact or only a small detail.

The fact that one side may use a greater number of witnesses or present a

greater quantity of evidence should not affect your decision. Rather, determine which

witness or witnesses and which evidence appears accurate and trustworthy. It is the

weight of the evidence that counts -- not the number of witnesses.

If the testimony of a single witness produces in your minds a belief in the likely

truth of any fact and would justify a verdict in accordance with the witness’s testimony,

even though a number of witnesses may have testified to the contrary, and you have

considered

all of the evidence in the case, then you hold greater belief in the accuracy and reliability

of this single witness.

INSTRUCTION NO. 9

CONDUCT OF THE JURY

To insure fairness, jurors are asked to obey the following rules:

First, do not talk among yourselves about this case, or about anyone involved

with this case, until the end of the case when you go to the jury room to decide on your

verdict.

Second, do not talk with anyone else about this case, or about anyone involved

with it, until the trial has ended and you have been discharged as jurors.

Third, during this trial when you are outside this courtroom, do not listen to or let

anyone try to tell you anything about this case. Do not let anyone talk to you about

anyone involved with this case until the trial has ended and I have accepted your verdict.

If anyone tries to talk to you about this case during the trial, please promptly report the

matter to me.

Fourth, during the trial you should not talk with or speak to any of the parties,

lawyers or witnesses involved in this case, which means that you should not even pass

the time of day with any of them. If a person from one side of the lawsuit sees you

talking to a person from the other side, even if it is on a matter unconnected with this trial

or simply to pass the time of day, such contact might arouse an unwarranted suspicion

about your fairness. If a lawyer, party or witness does not speak to you when you pass

in the hall, ride the elevator, or encounter each other elsewhere while this trial is taking

place, do not think he or she is being rude. Those persons are not supposed to talk or

visit with you, either.

Fifth, you must decide this case on the basis of evidence presented in the

courtroom. Therefore, do not read any news stories or articles about the case, or about

anyone involved with this case, or listen to any radio or television reports about the case

or about anyone involved with it. In fact, until the trial is over you should probably avoid

reading any newspapers or news journals, and avoid listening to any TV or radio

newscasts. There might not be any news reports of this case, but, if there are, you might

find yourself inadvertently reading or listening to something before you realize what you

are doing.

Sixth, do not do any research, on the Internet or otherwise, or make any

investigation on your own concerning this case. Do not use or refer to a dictionary or

any law books concerning any aspect of this case, including any evidence introduced.

Do not visit the scene of any incident that may have been mentioned in this case.

Seventh, do not form an opinion about any fact or issue in the case until you have

received all of the evidence, have heard arguments of counsel, have been instructed as

to the law of the case, and have retired to the jury room. Consequently, do not make up

your mind during the trial about what the verdict should be. Keep an open mind until

after you have gone to the jury room to decide the case and have discussed the

evidence with the other jurors.

Finally, do not be influenced by sympathy or prejudice. Do not indulge in any

speculation, guess, or conjecture. And do not make any inferences which are not

supported by the evidence.

INSTRUCTION NO. 10

OUTLINE OF TRIAL

The trial will proceed in the following manner:

First, the attorney for the plaintiff may make an opening statement. Next, the

attorney for the defendants may make an opening statement. An opening statement is

not evidence or argument. It is an outline of what the party intends to prove, a summary

of what the attorney expects the evidence to be.

The plaintiff's attorney will then present evidence through a direct examination of

a witness. The defendants’ attorney may then cross-examine that witness. After the

cross- examination, the plaintiff’s attorney may ask additional questions on re-direct.

The defendants’ attorney may also ask questions on re-cross. After the plaintiff has

presented all of his witnesses, the plaintiff will rest. The defendants will then present

their case. The defendants may present evidence through direct examination of

witnesses and plaintiff’s attorney may cross-examine those witnesses. Re-direct and re-

cross examinations may also take place.

After the evidence is completely presented, the attorneys will make their closing

arguments to summarize and interpret the evidence for you. Just as with opening

statements, these closing arguments are not evidence. I will then instruct you further on

the law. After that you will retire to the jury room to deliberate on your verdict.

INSTRUCTION NO. 11

STATEMENT OF THE CASE

This an action for the deprivation of constitutional rights brought under 42 U.S.C.

§ 1983, which provides that any person or persons who, under color of law, deprive

another of any rights, privileges, or immunities secured by the Constitution or laws of the

United States shall be liable to the injured party. The First and Fourteenth Amendments

of the United States Constitution give people a right to freedom of speech. Prisoners

have a limited right to freedom of speech regarding sending and receiving mail while

incarcerated. Governmental agencies must not retaliate against inmates who protest or

complain when the inmate believes these rights have been violated.

In this case, the plaintiff, Tyler Keup, is a state prisoner at a Department of

Correctional Services facility named the Lincoln Correctional Center. Mr. Keup alleges

that the defendants Frank Hopkins, Dennis Bakewell, Salvador “Tony” Cruz, Thye

deKoning, and Diane Sabatka-Rine, while acting under color of state law, interfered with

his federally protected right to send and receive mail. Mr. Keup also alleges that after he

protested against this alleged interference, the defendants retaliated against him.

The defendants contend that Mr. Keup was not damaged by the delay in sending

his pictures to his family. And that Mr. Keup did not exhaust the grievance process with

respect to all other mail issues before he filed his complaint. Additionally, the

defendants assert that they were following correctional facility regulations and policies,

that these prison regulations and policies are based on legitimate prison management

reasons and, therefore, they did not infringe of his constitutional rights.

INSTRUCTION NO. 12

UNCONTROVERTED FACTS

You are instructed that the following facts have been established. You must not

question the wisdom of these findings and must accept them as true.

1. Plaintiff, Tyler Keup, was at all times relevant to this action in the custody of the

State of Nebraska Department of Correctional Services, incarcerated as an

inmate at the Lincoln Correctional Center (LCC) in Lincoln, Nebraska.

2. Defendant Frank Hopkins was the Deputy Director of the State of Nebraska

Department of Correctional Services in Lincoln, Nebraska, at all times relevant to

this action.

3. Dennis Bakewell was the duly appointed and acting Warden of the LCC, a

correctional facility within the State of Nebraska Department of Correctional

Services in Lincoln, Nebraska, at the time this action was initiated but has not

held that position since May 7, 2006.

4. Salvador “Tony” Cruz is an employee of the State of Nebraska Department of

Correctional Services and at all time relevant to this action was assigned to work

at the LCC in Lincoln, Nebraska.

5. Thye deKoning is an employee of the State of Nebraska Department of

Correctional Services and at all time relevant to this action was assigned to work

at the LCC in Lincoln, Nebraska.

6. Diane Sabatka-Rine is an employee of the State of Nebraska Department of

Correctional Services and since May 2006 has been the duly named and acting

Warden of the LCC in Lincoln, Nebraska.

7. The Nebraska Department of Correctional Services grievance procedure for

inmates provides that an inmate may submit an Informal Grievance Form to unit

staff. If the inmate wishes to pursue a formal grievance, the inmate may submit a

Set One Formal Grievance form to the Chief Executive Officer (CEO). If the

inmate wishes to appeal the relief suggestion in response to the Step One

Grievance, he/she may submit a Step Two Grievance form to the Director of

Correctional Services.

8. On March 3, 2005, plaintiff tried to mail the drawings at issue in this case to his

mother, Melody Keup, via outgoing mail so that she could retain them for him until

his release. The drawings were returned to plaintiff by LCC staff because the

drawings allegedly violated Operation Memorandum 207.1.1 (revised October 29,

2004) by containing images of nudity and illegal drugs/drug paraphernalia.

9. On March 3, 2005, plaintiff initiated the grievance process concerning sending his

artwork to his mother to which defendant Cruz responded. Plaintiff completed the

three step grievance process by filing a Step One grievance to which defendant

Bakewell responded and a Step Two grievance on May 5, 2005. The Step Two

grievance was denied on May 18, 2005 by defendant Houston.

10. On August 23, 2005, plaintiff initiated the lawsuit by filing his complaint herein

with the U.S. District Court.

11. Plaintiff was allowed to mail the drawings in question out of the LCC facility to his

mother in or shortly after September 2005.

12. On September 3, 2005, plaintiff was informed by Thyede Koning that a letter plaintiff

Keup was mailing out of the LCC which contained legal papers and the artwork in

question in this lawsuit would be mailed but that the artwork would be removed fromthe mailing prior to mailing based on OM 207.1.1 (revised October 29, 2004).

13. The letter in question on September 3, 2005 was addressed to the Maoist

International Movement and was not marked “legal mail.”

14. Plaintiff filed an Informal Grievance on September 3, 2005, grieving the removal

of the artwork from the September 3, 2005, outgoing letter which was denied by

defendant Cruz and a timely Step One grievance which was denied by defendant

Bakewell.

15. Plaintiff was informed by Salvador “Tony” Cruz and Dennis Bakewell respectively

that the artwork was removed pursuant to Operational Memorandum 207.1.1.

16. Plaintiff filed a Step Two grievance on July 6, 2006, regarding the removal of the

artwork from the September 3, 2005 letter. The grievance was returned

unanswered to plaintiff Keup by defendant Hopkins alleging it was unanswered

because it was submitted too late and after the time limits established in the

departmental rules.

17. On December 28, 2006, a religious book and greeting card were received at the

LCC addressed to the plaintiff. The book was delivered to the plaintiff but the

greeting card was confiscated and returned to the sender. A notice of returned

mail was secured to the book informing plaintiff of the returned greeting card.

18. Plaintiff filed an informal grievance on January 14, 2007 requesting that his book

be replaced.

19. On February 2, 2007, defendant Cruz denied plaintiff’s informal request and

informed plaintiff that no disrespect was meant to his property and that the

greeting

card was confiscated pursuant to LCC Operational Memorandum 205.1.1.

20. Plaintiff initiated a Step One grievance on February 12, 2007 grieving the

confiscation of the greeting card and alleged damage to his book and alleging that

both were retaliatory in nature.

21. Plaintiff received a Response to his Step One grievance from defendant Sabatka-

Rine citing to Operational Memorandum 205.1.1.

22. Plaintiff filed a Step Two grievance on or about March 6, 2007 raising the issue

that enforcement of O.M. 205.1.1 hinders his constitutional rights to send and

receive mail.

23. Defendant Hopkins responded to the Step Two grievance stating that LCC rules

prohibit a card being sent to an inmate from a bookstore and advising plaintiff to

file a tort claim if he believed that his book had been damaged.

24. Plaintiff did not file a State Tort Claim regarding any alleged damage to his book

in the December 2006 incident.

25. On or about February 21, 2007, plaintiff was notified that a sketchbook he

ordered would not be delivered to him due to the fact that its content depicted

bondage which is prohibited by LCC Operational Memorandum 205.1.1.

26. Plaintiff initiated an informal grievance regarding the denial of the sketchbook and

defendant Cruz responded to the grievance stating that the sketchbook was not

permitted because it contained pictures of bondage in violation of O.M. 205.1.1.

27. Plaintiff submitted Step One and Step Two Grievances regarding the confiscation

of the sketchbook and received responses from defendant Sabatka-Rine and

defendant Hopkins stating that the denial of the sketchbook was proper since it

contained pictures of bondage in violation of O.M. 205.1.1.

28. That O.M. 205.1.1 states that materials which advocate or are likely to incite violentor illegal sexual activity such as (1) rape or other violent sexual, are considered

contraband. It also prohibits personal mail, cards, bookmarks, etc. from being

included in mailings from the bookstore/publisher.

INSTRUCTION NO. 15

CONSTITUTIONAL RIGHTS

An inmate, while incarcerated, has the right to send and receive mail under the

United States Constitution, that right may be limited or restricted if there is a legitimate

prison management reason for the limitation or restriction.

INSTRUCTION NO. 17

MOTIVATING FACTOR

As used in these instructions, the plaintiff's grievances or lawsuit was a

"motivating factor," if the plaintiff's grievances or lawsuit played a role in the defendants’

decision to interfere with the plaintiff’s right to send and receive mail. However, the

plaintiff's grievances or lawsuit need not have been the only reason for the defendants’

decision to interfere with the plaintiff’s mail.

INSTRUCTION NO. 18

INTRODUCTION

Now that you have heard the evidence and the attorneys’ arguments, it is my duty

to inform you of the legal principles and considerations you are to use in arriving at a

proper verdict.

It is your duty to follow the law given you in this charge and to apply these rules of

law to the facts as you find them from the evidence. Do not single out one instruction

alone as stating the law, but consider the instructions as a whole.

Do not be concerned with the wisdom of any rule of law that the court states.

Regardless of any opinion you may have about what the law ought to be, it would violate

your sworn duty to base a verdict upon a view of the law different from the one given in

these instructions, just as it would violate your sworn duty as judges of the facts to base

a verdict upon anything but the evidence in the case and the reasonable inferences

arising from such evidence.

INSTRUCTION NO. 19

EXPLANATORY

Members of the jury, most of the instructions I gave at the beginning of the trial

and during the trial remain in effect. Some instructions have been deleted from your

preliminary set and those instructions should not be considered. I will now give you

some additional instructions.

Other than the instructions that have been deleted from your preliminary set, you

must continue to follow the instructions that I gave you earlier, as well as those I give

you now. You must not single out some instructions and ignore others, because a ll are

important. This is true even though some of those I gave you at the beginning of trial

are not repeated here.

The instructions I am about to give you now as well as those I gave you earlier,

other than the deleted instructions, are in writing and will be available to you in the jury

room.

You will also receive a “Special Interrogatories and Verdict Form” to use in

conjunction with these instructions.

INSTRUCTION NO. 20

JUDGE’S OPINION

In the trial of this case and in these instructions, I have in no way attempted to

express my opinion about who should prevail upon the issues submitted to you. You

must not construe any statement, action, or ruling on my part during the trial as an

indication of my opinion about the proper outcome of your verdict. During the course of

a trial, I might have occasionally asked questions of a witness to bring out facts not fully

covered in the testimony. Do not assume that I hold any opinion on the matters to which

the questions related.

INSTRUCTION NO. 21

EVIDENCE AND OBJECTIONS

During the trial I have ruled on objections to certain evidence. You must not

concern yourselves with the reason for such rulings since they are controlled by rules of

law.

You must not speculate or form or act upon any opinion about how a witness

might have testified in answer to questions which I rejected during the trial, or upon any

subject matter to which I forbade inquiry.

In coming to any conclusion in this case, you must be governed by the evidence

before you and by the evidence alone. You may not indulge in speculation, conjecture or

inference not supported by the evidence.

The evidence from which you are to find the facts consists of the following: (1)

the testimony of the witnesses; (2) documents and other things received as exhibits; and

(3) any facts that have been stipulated -- that is, formally agreed to by the parties.

The following things are not evidence: (1) statements, comments, questions and

arguments by lawyers for the parties; (2) questions by jurors; (3) objections to questions;

(4) any testimony I told you to disregard; and (5) anything you may have seen or heard

about this case outside the courtroom.

INSTRUCTION NO. 22

REASONABLE INFERENCES

While you should consider only the evidence in the case, you are permitted to

draw such reasonable inferences from the testimony and exhibits as you feel are

justified in the light of common experience. In other words, you may make deductions

and reach conclusions which reason and common sense lead you to draw from the facts

which have been established by the testimony and evidence in the case.

INSTRUCTION NO. 23

§ 1983 INFRINGEMENT OF FIRST AMENDMENT RIGHTS

The plaintiff’s claims that the defendants infringed his First Amendment right to

send and receive mail in connection with the defendants’ refusal to accept plaintiff’s

drawings for mailing to his mother and to the Maoist Society, and the defendants’ refusal

to deliver a greeting card, are no longer before you and will not be decided by you.

INSTRUCTION NO. 24

CLAIM I

§ 1983 - FIRST AMENDMENT VIOLATION

SKETCHBOOK

You must determine whether the plaintiff’s First Amendment right to send and

receive mail was violated when the defendants refused to allow the plaintiff to receive a

sketchbook (Ex. 33) on February 21, 2007.

You must determine whether plaintiff has proved, by a preponderance of

evidence, that the defendants did not have a legitimate prison management reason for

their conduct.

If you find that the plaintiff has proven by a preponderance of the evidence that

the defendants did not have a legitimate prison management reason for the refusal,

your verdict will be for the plaintiff on that claim. If you find the plaintiff has not proven

by a preponderance of the evidence that there was no legitimate prison management

reason for the defendants’ conduct, your verdict will be for the defendants on this claim.

INSTRUCTION NO. 25

CLAIM II -

RETALIATION FOR EXERCISE OF FIRST AMENDMENT RIGHTS

ESSENTIAL ELEMENTS

In order to prevail on a claim of retaliation for the exercise of Constitutional rights

under 42 U.S.C. § 1983, the plaintiff must prove, by a preponderance of the evidence,

with respect to each defendant:

1. That the plaintiff engaged in protected activity, the filing of lawsuits and

grievances. The court has determined that the plaintiff has satisfied this

element.

2. That the plaintiff’s filing of grievances and a lawsuit was a motivating factor

in one or more of the following actions by the defendants:

(a) the defendants’ refusal to allow the plaintiff to mail

his drawings to the Maoist International Movement on

September 3, 2005;

(b) the defendants’ stapling of and defacing a religious

book belonging to the plaintiff; or

(c) the defendants’ refusal to allow the plaintiff to

receive a sketchbook that had been mailed to him on

February

21, 2007.

If you find that the plaintiff has not proved by a preponderance of evidence that

the filing of grievances and/or a lawsuit was a motivating factor in the defendants’

conduct in one or more of the above incidents, your verdict will be for the defendants on

this claim.

If you find that the plaintiff has proved by a preponderance of evidence that the

filing of grievances and/or a lawsuit was a motivating factor in the defendants’ conduct in

one or more of the above incidents, you must determine whether the defendants have

shown, by a preponderance of the evidence, that there was a legitimate prison

management reason for taking the above actions.

If you find that the defendants have shown, by a preponderance of the evidence,

that there was a legitimate prison management reason for taking the actions your verdict

will be for the defendants on this claim. If the defendants have not shown that there was

a legitimate prison management reason for taking the actions, your verdict will be for the

plaintiff on this claim.

INSTRUCTION NO. 26

NOMINAL DAMAGES

You are instructed that if you find in favor of any or all defendants on plaintiff’s

claims, plaintiff will be entitled to recover nominal damages in the amount of $1.00.

INSTRUCTION NO. 27

MULTIPLE DEFENDANTS

Although there are four defendants in this action, it does not follow from the fact

alone that if one is liable, all are liable. Each defendant is entitled to a fair consideration

of his own defense, and is not to be prejudiced by the fact, if it should become a fact,

that you find against another. Unless otherwise stated, all instructions given you govern

the case as to each defendant.

INSTRUCTION NO. 28

NOTE-TAKING

Throughout the course of the trial you have been allowed to take notes of the

testimony. You may take your notes into the jury room for use in your deliberations.

Remember, however, your notes are not evidence. The courtroom deputy is charged

with the task of keeping the official record of all exhibits received into evidence during

the trial. At the close of trial, she will deliver all exhibits you are to consider in your

deliberations.

Your notes should be used only as aids to your memory. You should not give

your notes precedence over your independent recollection of the evidence. You should

rely on your own independent recollection of the proceedings, and you should not be

influenced by the notes of other jurors. Your notes are not entitled to any greater weight

than each juror’s recollection or impression of the testimony given during this trial. After

you have reached a verdict, your notes will be destroyed.

INSTRUCTION NO. 29

DELIBERATIONS AND VERDICT

In conducting your deliberations and returning your verdict, there are certain rules

you must follow.

First, when you retire to the jury room, first select one of your number to be

foreperson to preside over your discussions and to speak for you here in court.

Second, it is your duty, as jurors, to discuss this case with one another in the jury

room. You should try to reach agreement because a verdict—whether liable or not liable

—must be unanimous. Each of you must make your own conscientious decision, but

only after you have considered all the evidence, discussed it fully with your fellow jurors,

and listened to the views of your fellow jurors. Do not be afraid to change your opinions

if the discussion persuades you that you should. But do not come to a decision simply

because other jurors think it is right, or simply to reach a verdict.

Third, you will take with you when you retire for your deliberations an official

verdict form on which you will indicate a verdict. Please follow the directions carefully

when filling it out. A verdict must be agreed to by all of you, that is, it must be

unanimous. Your verdict must be signed by the foreperson.

Fourth, if you need to communicate with me during your deliberations, you may

send a note to me through the courtroom deputy, signed by one or more jurors. I will

respond as soon as possible either in writing or orally in open court. Your answer may

not come immediately because I may need to assemble the attorneys and confer with

them before I respond. Remember that you should not tell anyone—including me—how

your votes stand numerically.

Finally, when you arrive at your verdict and the form of verdict has been

completed, you will have concluded your task. Notify my chambers and I will receive

your verdict promptly. If you do not agree on a verdict by 5:00 this evening, you may

separate and return for further deliberations tomorrow. You may separate for meals

whenever you choose. If you do separate, you are not allowed to discuss this case with

anyone, even another juror.