9th Cir. Model Jury Instr. (Civil) 9.42

Elements and Burden of Proof

The plaintiff [name] brings [his] [her] [other pronoun] claim[s] under a Supreme Court decision known as “Bivens,” which permits a plaintiff to seek damages from any person who, acting under color of federal law, deprives the plaintiff of certain rights, privileges, or immunities secured by the Constitution of the United States.

To prevail on [his] [her] [other pronoun] Bivens claim against the defendant [name], the plaintiff [name] must prove each of the following elements by a preponderance of the evidence:

First, the defendant [name] acted under color of federal law; and

Second, the [act[s]] [failure to act] of the defendant [name] deprived the plaintiff [name] of [his] [her] [other pronoun] particular rights under the United States Constitution, as explained elsewhere in these instructions.

A person acts “under color of federal law” when the person acts or purports to act in the performance of official duties under any federal law. [[The parties have stipulated] [I instruct you] that the defendant acted under color of federal law.]

If you find the plaintiff [name] has proved each of these two elements, and if you also find that the plaintiff [name] has proved all the elements [he] [she] [other pronoun] is required to prove under Instruction[s] [specify the instruction[s] that deal[s] with the particular right[s]], your verdict should be for the plaintiff [name]. If, on the other hand, you find that the plaintiff [name] has failed to prove any one or more of these elements, your verdict should be for the defendant [name].