11th Cir. Pattern Jury Instr. (Civil) 5.7

Convicted Prisoner Alleging Failure to Intervene

In this case, [name of plaintiff] claims that [name of defendant], while

acting under color of law, failed to intervene when [name of officer] used

excessive force against [name of plaintiff] in violation of the United States

Constitution.

An officer who fails or refuses to intervene when a constitutional

violation such as excessive force takes place in his presence may be held

liable for his failure to intervene.

To succeed on this claim, [name of plaintiff] must prove each of the

following facts by a preponderance of the evidence:

First: That [name of officer] used excessive force on [name of plaintiff];

Second: That [name of defendant] [saw [name of officer] use excessive

force] [knew [name of officer] was going to use excessive force];

Third: That [name of defendant] had a realistic opportunity to prevent

harm from occurring;

Fourth: That [name of defendant] failed to take reasonable steps to

prevent harm from occurring;

Fifth: That [name of defendant]’s failure to act caused [name of

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plaintiff]’s injuries and the injuries were a reasonably foreseeable consequence

of [name of defendant]’s failure to act; and

Sixth: That [name of defendant] acted under color of law. [The parties

have agreed that [name of defendant] acted under color of law, so you should

accept that as a proven fact.]

[For the sixth element, you must decide whether [name of defendant]

acted under color of law. A government official acts “under color” of law when

acting within the limits of lawful authority. [He/She] also acts under color of

law when [he/she] claims to be performing an official duty but [his/her] acts are

outside the limits of lawful authority and abusive in manner, or [he/she] acts

in a way that misuses [his/her] power and is able to do so only because [he/she]

is an official.]

If you find [name of plaintiff] has proved each of the facts [he/she]

must prove, you must then decide the issue of [name of plaintiff]’s damages. If

you find that [name of plaintiff] has not proved each of these facts, then you

must find for [name of defendant].

NOTE: Model Jury Interrogatory Forms may be found in the

appendices after the last civil rights jury instruction (Pattern Instruction 5.13) for

use in actions brought under 42 U.S.C. § 1983. Three types of Model Jury

Interrogatory Forms are provided: (A) a simplified Interrogatory Form for use in

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most civil rights actions; (B) an Interrogatory Form for use in actions that do not

require application of the Prison Litigation Reform Act, and (C) an

Interrogatory Form for use in actions that do require application of the Prison

Litigation Reform Act.