9th Cir. Model Jury Instr. (Civil) 9.7

To prevail on the plaintiff’s § 1983 claim against defendant [name of local governing body] alleging liability based on ratification by a final policymaker, the plaintiff [name] must prove each of the following elements by a preponderance of the evidence:

First, [name of defendant’s employee] acted under color of state law;

Second, the [act[s]] [failure to act] of [name of defendant’s employee] deprived the plaintiff [name] of particular rights under [the laws of the United States] [the United States Constitution] as explained in later instructions;

Third, [name of person the plaintiff alleges was a final policymaker] acted under color of state law;

Fourth, [name of final policymaker] had final policymaking authority from defendant [name of local governing body] concerning the [act[s]] [failure to act] of [name of defendant’s employee]; and

Fifth, [name of final policymaker] ratified [name of defendant’s employee]’s [act[s] [failure to act], that is, [name of alleged final policymaker] knew of and specifically made a deliberate choice to approve [name of defendant’s employee]’s [act[s]] [failure to act] and the basis for it.

A person acts “under color of state law” when the person acts or purports to act in the performance of official duties under any state, county, or municipal law, ordinance, or regulation. [[The parties have stipulated that] [I instruct you that] the defendant’s [employee] [official] acted under color of state law.]

I instruct you that [name of final policymaker] had final policymaking authority from defendant [name of local governing body] concerning the act[s] at issue and, therefore, the fourth element requires no proof.

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