9th Cir. Model Jury Instr. (Civil) 9.32

As previously explained, the plaintiff [name] has the burden of proving that the [act[s]] [failure to act] 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 prove the defendant [name] deprived the plaintiff of this Eighth Amendment right, the plaintiff [name] must prove the following elements by a preponderance of the evidence:

First, the defendant [name] made an intentional decision with respect to the conditions under which the plaintiff [name] was confined;

Second, those conditions put the plaintiff [name] at substantial risk of suffering serious harm;

Third, the defendant [name] did not take reasonable available measures to abate that risk, even though a reasonable officer in the circumstances would have appreciated the high degree of risk involved—making the consequences of the defendant [name]’s conduct obvious; and

Fourth, by not taking such measures, the defendant caused the plaintiff [name]’s injuries.

With respect to the third element, the defendant’s conduct must be both objectively unreasonable and done with a subjective awareness of the risk of harm. In other words, the defendant must have known facts from which an inference could be drawn that there was a substantial risk of serious harm, and the defendant must have actually drawn that inference.