9th Cir. Model Jury Instr. (Civil) 9.29

Prisoner’s Claim of Excessive Force

As previously explained, the plaintiff [name] has the burden of proving that the act[s] of the defendant [name] deprived the plaintiff [name] of particular rights under the United States Constitution. In this case, the plaintiff [name] alleges the defendant [name] deprived [him] [her] [other pronoun] of [his] [her] [other pronoun] rights under the Eighth Amendment to the Constitution when [insert factual basis of the plaintiff’s claim].

Under the Eighth Amendment, a convicted prisoner has the right to be free from “cruel and unusual punishments.” To establish the defendant [name] deprived the plaintiff [name] of this Eighth Amendment right, the plaintiff [name] must prove the following elements by a preponderance of the evidence:

First, the defendant [name] used excessive and unnecessary force under all of the circumstances;

Second, the defendant [name] acted maliciously and sadistically for the purpose of causing harm, and not in a good faith effort to maintain or restore discipline; and

Third, the act[s] of the defendant [name] caused harm to the plaintiff [name].

In determining whether these three elements have been met in this case, consider the following factors:

(1) the extent of the injury suffered;

(2) the need to use force;

(3) the relationship between the need to use force and the amount of force used;

(4) any threat reasonably perceived by the defendant; and

(5) any efforts made to temper the severity of a forceful response, such as, if feasible,

providing a prior warning or giving an order to comply.