Fill and Sign the Jury Instruction 221 First Amendment Claim Prisoner Alleging Denial of Access to Courts Form

2.1 Civil Rights 42 USC § 1983 Claims First Amendment Claim Prisoner Alleging Denial Of Access To Courts In this case, the Plaintiff claims that the Defendant, while acting "under color" of state law, violated the Plaintiff's constitutional rights under the First Amendment to the Constitution of the United States. Specifically, the Plaintiff claims that the Plaintiff’s constitutional right of access to the courts was violated by the Defendant in making a disciplinary report against the Plaintiff because [he] [she] had communicated an intent to sue the Defendant concerning [the Plaintiff's continuation in a close confinement status]. In that regard you are instructed that a convicted prisoner loses some constitutional rights upon being found guilty of a felony offense -- the right to liberty, for example - - but the prisoner keeps or retains other constitutional rights. One of those retained rights is the right under the First Amendment of access to the courts in order to litigate the lawfulness of the prisoner's conviction and the constitutionality of the conditions of confinement. Under the Eighth Amendment, for example, a prisoner has the right not to be subjected to cruel and unusual punishment; and, if a prisoner had no right to go to court to vindicate claims of Eighth Amendment violations, the guarantees of the Constitution would have little or no meaning because there would be no effective way to enforce those guarantees. So, the First Amendment assures everyone, including convicted prisoners, of the right of access to the courts. Furthermore, the right of access to the courts means that a prisoner not only has the right to file claims and other papers with the court, but that the exercise of that right, or plans to exercise that right, cannot be made the basis of a penalty or further punishment. This is true because, once again, if a prisoner could be punished afterward for exercising a constitutional right or for giving a good faith notice of an intent to do so, the right itself would be rendered meaningless. On the other hand, in order to maintain discipline and security, prison authorities do have the right to impose reasonable restrictions even upon the exercise of constitutional rights. The prohibition against the making of written threats by inmates is one such reasonable restriction upon the exercise of First Amendment rights; [and, in this case, the Defendant claims that the Plaintiff's communication to the Defendant concerning a lawsuit was nothing more than a written threat intended by the Plaintiff as an act of harassment of prison officials rather than a good faith notice of an intent to sue given as a part of an effort to reach an amicable settlement with regard to a pending, legitimate dispute.] The factual issue for you to decide, therefore, is whether the Plaintiff has proved, by a preponderance of the evidence, that the communication made to the Defendant about a lawsuit was not a threat intended in bad faith as an act of harassment, but was made by the Plaintiff in good faith as an exercise of First Amendment rights, and that the Plaintiff was intentionally retaliated against or punished by the Defendant for the exercise of those rights. If you find for the Plaintiff and against the Defendant on this issue, you will then consider the issue of Plaintiff's damages, if any, sustained as a proximate or legal result of the Defendant's violation of the Plaintiff's constitutional rights. Damages are the proximate or legal result of a wrongful act of another if you find from a preponderance of the evidence that, except for the wrongful act, the damages would not have occurred. A wrongful act may be a proximate or legal cause of damages even though the wrongful act operates in combination with the act of another so long as the wrongful act contributes substantially to producing the damages. You may consider any emotional pain and mental anguish suffered by the Plaintiff as a result of any additional punishment imposed upon the Plaintiff as a result of the exercise of constitutional rights. No evidence of the value of such intangible things as emotional pain and mental anguish has been or need be introduced. In that respect it is not value you are trying to determine, but an amount that will fairly compensate the Plaintiff for the injury the Plaintiff has suffered. There is no exact standard for fixing the compensation to be awarded on account of such elements of damage. Any such award should be fair and just in the light of the evidence; and if you find that the Plaintiff's damages were minor or slight or negligible in amount, you may award a nominal sum such as $1.00. The Plaintiff also claims that the acts of the Defendant were done with malice or reckless indifference to the Plaintiff’s [federally protected] rights so as to entitle the Plaintiff to an award of punitive damages in addition to compensatory damages. If you find for the Plaintiff, and if you further find that the Defendant did act with malice or reckless indifference to the Plaintiff’s [federally protected] rights, the law would allow you, in your discretion, to assess punitive damages against the Defendant as punishment and as a deterrent to others. If you find that punitive damages should be assessed against the Defendant, you may consider the financial resources of the Defendant in fixing the amount of such damages [and you may assess punitive damages against one or more of the Defendants, and not others, or against more than one Defendant in different amounts]. 2.1 Civil Rights 42 USC § 1983 Claims First Amendment Claim Prisoner Alleging Denial Of Access To Courts SPECIAL INTERROGATORIES TO THE JURY Do you find from a preponderance of the evidence: 1. That the communication made by the Plaintiff to the Defendant about a lawsuit was not a threat intended in bad faith as an act of harassment, but was made by the Plaintiff in good faith as an exercise of First Amendment rights? Answer Yes or No [Note: If you answered No to Question No. 1, you need not answer the remaining questions.] 2. That the Defendant intentionally retaliated against or punished the Plaintiff for the exercise of those rights? Answer Yes or No 3. That the Plaintiff should be awarded damages to compensate for emotional pain and mental anguish? Answer Yes or No If your answer is Yes, in what amount? $ 4. That the Defendant acted with malice or with reckless indifference to the Plaintiff’s federally protected rights, and that punitive damages should be assessed against the Defendant? Answer Yes or No If your answer is Yes, in what amount? $ SO SAY WE ALL. Foreperson DATED: ANNOTATIONS AND COMMENTS This instruction, and those that follow in this Part II dealing with constitutional claims asserted by prisoners under 42 USC § 1983, involve causes of action as to which the Defendants will usually assert, on motion for summary judgment, a qualified immunity defense under Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). When raised, the defense presents a question of law for the court. See, e.g., Post v. City of Ft. Lauderdale, 7 F.3d 1552 (11th Cir. 1993), modified, 14 F.3d 583 (11th Cir. 1994). These instructions assume, therefore, that the court has previously determined that the Defendants do not have a qualified immunity defense. If there is a fact issue preventing summary judgment on the qualified immunity defense (and that issue is not subsumed in the elements of the claim the Plaintiff must prove), it may be necessary to submit that issue to the jury in the form of a special interrogatory. In such a case, however, it should not be necessary to expand the instructions to the jury, i.e. the ultimate legal issue remains for the Court, not the jury. It must also be determined in advance of trial whether the Prison Litigation Reform Act of 1995 (Pub.L. 104-134) forecloses claims for damages in cases where there is no physical injury to the Plaintiff’s person. 42 USC § 1997e(e) provides: No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury. The Ninth Circuit has held that the statute is inapplicable to First Amendment claims. Canell v. Lightner, 143 F.3d 1210 (9th Cir. 1998). The Seventh Circuit has held that the statute is applicable to Eighth Amendment claims and that it is a constitutionally valid restriction on the remedies available under § 1983. Zehner v. Trigg, 133 F.3d 459 (7th Cir. 1997). With respect to a prisoner’s First Amendment right of access to the courts, see Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), and Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996).