“there is a special relationship between 5 jailer and prisoner which imposes a duty of care on the jailer to the prisoner”
How later courts described this case
- “there is a special relationship between 5 jailer and prisoner which imposes a duty of care on the jailer to the prisoner”
- explaining the standard of care “concern[s] the scope of an established 21 duty”
Written by the judges who cited it.
The opinion
1
2
3
4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6
7 ERNESTO VARGAS, Case No. 23-cv-02490-TSH
8 Plaintiff,
[TENTATIVE] ORDER RE: JURY
9 v. INSTRUCTIONS
10 L. LOPEZ, et al.,
11 Defendants.
12
13 On August 21, 2025, the parties submitted proposed jury instructions. ECF No. 70. The
14 parties jointly proposed preliminary instructions and instructions for the end of the case. Id.
15 Below are the Court’s tentative rulings on the proposed jury instructions. The parties shall be
16 prepared to discuss any objections, comments, or suggestions concerning the instructions at the
17 October 2, 2025, pretrial conference.
18 The Court will use preliminary instructions, which will be read at the beginning of trial
19 after the jury is sworn in and before opening statements. After the close of evidence, the Court
20 will have a charging conference to finalize the final instructions, so the parties will know what
21 they are for purposes of making their closing arguments. The Court will read the final instructions
22 following closing arguments and will provide a written copy of the final instructions for the jurors
23 to take into the jury room during their deliberations.
24 Preliminary Jury Instructions
25 The Court will not provide the jury with a written set of the preliminary instructions. The
26 Court will use stipulated instruction No. 1 (which corresponds to instruction 1.3).1
27
1 For disputed instruction No. 2, the Court generally prefers Plaintiff’s version, which
2 follows instruction 1.5. However, the Court will not include the following language: “Defendants
3 also contend that Officer Lopez-Ortega and Lieutenant Whitman entitled to qualified immunity.
4 Defendants have the burden of proof on their defenses.” Defendants’ sole affirmative defense is
5 qualified immunity, which is for the Court, not the jury, to resolve. Accordingly, the Court will
6 use the following instruction 1.5:
7 To help you follow the evidence, I will give you a brief summary of
the positions of the parties:
8
Plaintiff Ernesto Vargas asserts the following three claims against the
9 defendants: (1) an Eighth Amendment claim under 42 U.S.C. § 1983
against Officer Lopez-Ortega for deliberate indifference to Vargas’s
10 safety; (2) a negligence claim against Officer Lopez-Ortega under
California common law; and (3) a First Amendment retaliation claim
11 under 42 U.S.C. § 1983 against Lieutenant Whitman. Plaintiff has the
burden of proving these claims.
12
Defendants deny the allegations of wrongdoing.
13
14 The Court will include the parties’ stipulated instruction No. 3 (Action Solely Against
15 Defendants) (ECF No. 70 at 11), modified slightly as follows (to explain what “CDCR” is):
16 This is not an action against the State of California or against the
California Department of Corrections and Rehabilitation (“CDCR”)
17 or any prison of the California Department of Corrections and
Rehabilitation.
18
Plaintiff Ernesto Vargas is a State prisoner incarcerated at the
19 Correctional Training Facility (“CTF”) in Soledad, California.
20 This is an action against Defendants Whitman and Lopez-Ortega, who
are CDCR correctional officers working at the CTF.
21
22 The Court will use stipulated instruction No. 4 (which corresponds to instruction 1.6). The
23 parties agree that on his negligence claim, Plaintiff has the burden to prove by clear and
24 convincing evidence that punitive damages should be awarded (see stipulated instruction No. 32),
25 yet they have omitted instruction 1.7. The Court will use instruction 1.7. The Court will use
26 stipulated instructions Nos. 5 and 6 (which correspond to instructions 1.8 and 1.9). The Court will
27
1 use stipulated instruction No. 7 (which corresponds to instruction 1.10), with the following
2 modification: “In addition, some evidence was may be received only for a limited purpose; when
3 I instruct have instructed you to consider certain evidence only for a limited purpose, you must do
4 so and you may not consider that evidence for any other purpose.” The Court will also use
5 instruction 1.11 (“Some evidence may be admitted only for a limited purpose. When I instruct you
6 that an item of evidence has been admitted only for a limited purpose, you must consider it only
7 for that limited purpose and not for any other purpose.”). The Court will use stipulated instruction
8 No. 8 (which corresponds to instruction 1.12).
9 The Court will use stipulated instructions Nos. 9 and 10 (which correspond to instructions
10 1.13 and 1.14). The Court will use stipulated instruction No. 11 (which corresponds to instruction
11 1.15) modified as follows: “If any juror is exposed to any outside information, please notify the
12 court immediately, by sending a note through the courtroom deputy signed by any one or more of
13 you.”
14 The Court will also use instruction 1.17. The Court will use stipulated instruction No. 12
15 (corresponding to instruction 1.18) modified as follows:
16 If you wish, you may take notes to help you remember the evidence.
If you do take notes, please keep them to yourself until you go to the
17 jury room to decide the case. Do not let notetaking distract you. When
you leave, your notes should be left in the courtroom jury room. No
18 one will read your notes.
19 Whether or not you take notes, you should rely on your own memory
of the evidence. Notes are only to assist your memory. You should
20 not be overly influenced by your notes or those of other jurors.
21 The Court will use stipulated instructions 13 and 14 (which correspond to instructions 1.20
22 and 1.21). The Court will not use stipulated instruction No. 15 because it is duplicative of
23 stipulated instruction No. 10. The Court will use Defendants’ disputed instruction No. 16 because
24 it adheres to instruction 2.9 and because Vargas has stated that he intends to provide at least some
25 testimony concerning his 2003 conviction.
26 The Court will not use either sides’ disputed instruction No. 17 (Evidence of Habit or
27 Routine Practice) (ECF No. 70 at 29) because it is not included in the model jury instructions, nor
1 both sides’ proposed instructions are contested summaries of Federal Rules of Evidence 404, 405
2 and 406. But the Federal Rules of Evidence are for the Court to follow in deciding what is
3 admissible; they are not meant to be jury instructions.
4 The Court will not use Plaintiff’s disputed instruction No. 18. Instead, the Court will use
5 instruction 2.4 in the preliminary instructions, modified to reflect Plaintiff’s argument that he may
6 use deposition testimony from witnesses who are available to testify at trial:
7 You may hear from a deposition during the trial. A deposition is the
sworn testimony of a witness taken before trial. The witness is placed
8 under oath to tell the truth and lawyers for each party may ask
questions. The questions and answers are recorded.
9
Insofar as possible, you should consider deposition testimony,
10 presented to you in court in lieu of live testimony, in the same way as
you consider testimony given in court.
11
12 Final Jury Instructions
13 The Court will use stipulated instruction No. 19 (which corresponds to instruction 1.4).
14 The Court will use stipulated instruction No. 20 (which corresponds to instruction 9.1).
15 For disputed instruction No. 21, the parties each submit a version of instruction 9.3. The
16 Court will use the following instruction 9.3:
17 In order to prevail on his § 1983 claim against Defendants Lopez-
Ortega and Whitman, Vargas must prove each of the following
18 elements by a preponderance of the evidence:
19 1. The defendant acted under color of state law; and
20 2. The act or failure to act of the defendant deprived the
plaintiff of particular rights under the United States
21 Constitution as explained in later instructions; and
22 3. The defendant’s conduct was an actual cause of the claimed
injury.
23
24 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,
25 county, or municipal law, ordinance, or regulation. The parties have
stipulated that Defendants acted under color of state law.
26
The defendant’s conduct is an actual cause of a plaintiff's injury only
27 if the injury would not have occurred ‘but for' that conduct, and the
If you find that Plaintiff has proved each of these elements, and if you
1 find that Plaintiff has proved all the elements he is required to prove
under Instruction _ [Particular Rights—Eighth Amendment], your
2 verdict should be for Plaintiff as to that claim. If, on the other hand,
you find that Plaintiff has failed to prove any one or more of these
3 elements as to that claim, your verdict should be for that defendant.
4 If you find that Plaintiff has proved each of these elements, and if you
find that Plaintiff has proved all the elements he is required to prove
5 under Instruction _ [Particular Rights—First Amendment
Retaliation], your verdict should be for Plaintiff as to that claim. If,
6 on the other hand, you find that Plaintiff has failed to prove any one
or more of these elements as to that claim, your verdict should be for
7 that defendant.
8 For disputed instruction No. 22, the parties each submit a version of instruction 9.28. The
9 Court will use the following instruction 9.28:
10 As previously explained, Plaintiff has the burden of proving that the
act or failure to act of Defendant Lopez-Ortega deprived him of
11 particular rights under the United States Constitution. In this case,
Plaintiff alleges Defendant Lopez-Ortega deprived him of his rights
12 under the Eighth Amendment to the Constitution when Defendant
Lopez-Ortega purposely released Plaintiff to the prison yard.
13
Under the Eighth Amendment, a convicted prisoner has the right to
14 be free from “cruel and unusual punishments.” To prove Defendant
Lopez-Ortega deprived Plaintiff of this Eighth Amendment right,
15 Plaintiff must prove the following elements by a preponderance of the
evidence:
16
First, Defendant Lopez-Ortega made an intentional decision with
17 respect to the conditions under Plaintiff was confined;
18 Second, those conditions put Plaintiff at substantial risk of suffering
serious harm;
19
Third, Defendant Lopez-Ortega did not take reasonable available
20 measures to abate that risk, even though a reasonable officer in the
circumstances would have appreciated the high degree of risk
21 involved—making the consequences of Defendant Lopez-Ortega’s
conduct obvious; and
22
Fourth, by not taking such measures, Defendant Lopez-Ortega caused
23 Plaintiff’s injuries.
24 With respect to the third element, Defendant Lopez-Ortega’s conduct
must be both objectively unreasonable and done with a subjective
25 awareness of the risk of harm. In other words, Defendant Lopez-
Ortega must have known facts from which an inference could be
26 drawn that there was a substantial risk of serious harm, and he must
have actually drawn that inference.
27
1 Circuit requires a deference instruction when there is no genuine dispute that two conditions are
2 met: “whether the treatment the prisoner challenges (1) was provided pursuant to a security-based
3 policy or practice, and, if so, (2) was a necessary, justified, and non-exaggerated response to
4 security needs.” Fierro v. Smith, 39 F.4th 640, 648 (9th Cir. 2022). “The plaintiff bears the
5 burden of producing ‘substantial evidence’ in the record that the two conditions are not met.”
6 Instruction 9.28 Comments (citing Shorter v. Baca, 895 F.3d 1176, 1183 (9th Cir. 2018)). By
7 contrast, if there is no genuine dispute that either or both conditions are not met, “the deference
8 instruction may not be given.” Fierro, 39 F.4th at 648. The Court does not decide this issue now,
9 in advance of trial. Instead, after the close of evidence, the Court will discuss the issue with the
10 parties at the charging conference.
11 For disputed instruction No. 23, the parties each submit a version of instruction 9.11A.
12 The Court will use the following instruction 9.11A:
13 As previously explained, Plaintiff has the burden of proving that the
act of Defendant Whitman deprived him of particular rights under the
14 United States Constitution. In this case, Plaintiff alleges Defendant
Whitman deprived him of his rights under the First Amendment to the
15 Constitution when Defendant Whitman retaliated against him for
filing a grievance by denying Plaintiff’s appeal of the Rule Violation
16 Report (“RVR”) issued against him.
17 Under the First Amendment, a prisoner has the right to access the
courts and petition the government for redress of grievances. This
18 includes the right to file prison grievances. To establish Defendant
Whitman deprived Plaintiff of this First Amendment right, Plaintiff
19 must prove the following additional elements by a preponderance of
the evidence:
20
1. Plaintiff was engaged in conduct protected under the First
21 Amendment;
22 2. Defendant Whitman took adverse action against
Plaintiff;
23
3. Defendant Whitman took adverse action against Plaintiff
24 because of Plaintiff’s protected conduct;
25 4. The adverse action taken by Defendant Whitman chilled
Plaintiff’s exercise of his First Amendment rights; and
26
5. The action taken by Defendant Whitman did not
27 reasonably advance a legitimate correctional goal.
silence a person of ordinary firmness from engaging in that activity.
1
To prevail, Plaintiff must show that his protected conduct was the
2 substantial or motivating factor behind Defendant Whitman’s
conduct. A substantial or motivating factor is a significant factor.
3 The chronology of events may be considered as circumstantial
evidence of a causal connection between the adverse action and the
4 plaintiff’s protected conduct.
5 The Court will evaluate Defendants’ request for a deference instruction after the close of evidence.
6 For disputed instruction No. 24, the parties each submit a proposed instruction 9.8
7 (comments only) (2019). The Court will use the following instruction 9.2 (comments only):
8 In order to establish that the acts or failure to act of Defendant Lopez-
Ortega caused him harm, Plaintiff must show that the Defendant
9 Lopez-Ortega’s conduct was the actionable cause of his claimed
injury. Plaintiff must establish both causation-in-fact and proximate
10 causation.
11 A defendant’s conduct is a “cause-in-fact,” of a plaintiff’s injury only
if the injury would not have occurred but for that conduct.
12
A defendant’s conduct is a “proximate cause” of a plaintiff’s injury if
13 it was not just any cause, but one with a sufficient connection to the
result, meaning that the plaintiff’s injury was a reasonably probable
14 consequence of the defendant’s action or failure to act.
15 Vargas argues that separate causation instructions are warranted for each Defendant. ECF No. 70
16 at 57. However, a separate causation instruction for Whitman is unnecessary because causation is
17 already explained in instruction 9.11A, specific to the First Amendment cause of action. See
18 Instruction 9.2 Comments (“When a § 1983 claim alleges discrimination because of the plaintiff’s
19 exercise of a First Amendment right, use the ‘substantial or motivating factor’ formulation already
20 included in Instructions 9.9 . . . and 9.11[.]”). Thus, the Court will not give Plaintiff’s disputed
21 instruction No. 25.
22 For disputed instruction No. 26, the parties each submit a proposed CACI instruction 400.
23 Vargas requests that CACI instruction 400 include the special duty of care owed to Vargas by
24 Defendant Lopez-Ortega. ECF No. 70 at 64. “[T]he existence of a duty is a question of law for
25 the court.” Kentucky Fried Chicken of Cal., Inc. v. Superior Ct., 14 Cal. 4th 814, 819 (1997). The
26 Court agrees with Vargas that under California law, “there exists a special relationship between a
27 jailer and a prisoner giving rise to a duty of care to protect the prisoner from foreseeable harm
1 (2021) (“In a case involving harm caused by a third party, a person may have an affirmative duty
2 to protect the victim of another’s harm if that person is in what the law calls a ‘special
3 relationship’ with either the victim or the person who created the harm.”); Giraldo v. Dep’t of
4 Corr. & Rehab., 168 Cal. App. 4th 231, 253–54 (2008) (“there is a special relationship between
5 jailer and prisoner which imposes a duty of care on the jailer to the prisoner”). The Court finds
6 that it is appropriate to include this special duty of care in the general instruction for negligence.
7 See CACI Instruction 400 (discussing special relationships and corresponding duty of care); cf.
8 Instruction 9.28 (including duty to protect in instruction). Therefore, the Court will use the
9 following CACI instruction 400:
10 Plaintiff claims that he was harmed by Defendant Lopez-Ortega’s
negligence. To establish this claim, Mr. Vargas must prove all of the
11 following:
12 1. That Defendant Lopez-Ortega was negligent;
2. That Plaintiff was harmed; and
13 3. That Defendant Lopez-Ortega’s negligence was a
substantial factor in causing Mr. Vargas’s harm.
14
Defendant Officer Lopez-Ortega had a duty to protect Plaintiff from
15 foreseeable harm inflicted by a third party.
16 In disputed instruction No. 27, Defendants submit a proposed CACI instruction 401.
17 Vargas objects to this instruction, arguing that “the basic standard of care does not apply to [the
18 negligence claim]” because of the special relationship between a jailer and prisoner. ECF No. 70
19 at 67. Vargas conflates the duty of care with the standard of care. See Ramirez v. Plough, Inc., 6
20 Cal. 4th 539, 546 (1993) (explaining the standard of care “concern[s] the scope of an established
21 duty”). As discussed, the Court will include the appropriate duty of care in CACI instruction 400.
22 But “[i]n most cases, courts have fixed no standard of care for tort liability more precise than that
23 of a reasonably prudent person under like circumstances.” Id. Vargas has not demonstrated that
24 the standard of care applicable here differs from the usual reasonable person standard. Therefore,
25 the Court will use the following CACI instruction 401:
26 Negligence is the failure to use reasonable care to prevent harm to
oneself or to others.
27
person would not do in the same situation or fails to do something that
1 a reasonably careful person would do in the same situation.
2 You must decide how a reasonably careful person would have acted
in Defendant Lopez-Ortega’s situation.
3
4 In disputed instruction No. 28, Vargas submits a proposed CACI instruction 3933, and
5 Defendants submit a proposed CACI instruction 405. The Court will not use CACI instruction
6 3933 because this case does not involve “joint and several liability of multiple defendants.” See
7 CACI Instruction 3933. As explained in ECF No. 87, the Court will not give CACI Instruction
8 405 concerning comparative fault.
9 The Court will use stipulated instruction No. 29 (which is CACI instruction 430).
10 In disputed instruction No. 30, the parties each submit a version of instructions 5.1 and 5.2.
11 The Court will use the following instructions 5.1 and 5.2:
12 It is the duty of the Court to instruct you about the measure of
damages. By instructing you on damages, the Court does not mean
13 to suggest for which party your verdict should be rendered.
14 If you find for Plaintiff on his First Amendment claim, his Eighth
Amendment claim, or his negligence claim, you must determine
15 Plaintiff’s damages. Plaintiff has the burden of proving damages by
a preponderance of the evidence. Damages means the amount of
16 money that will reasonably and fairly compensate Plaintiff for any
injury you find was caused by Defendants. In determining the
17 measure of damages, you should consider the following:
18 1. The nature and extent of the injuries;
19 2. The loss of enjoyment of life experienced and that with
reasonable probability will be experienced in the
20 future;
21 3. The mental, physical, or emotional pain and suffering
experienced and that with reasonable probability will
22 be experienced in the future;
23 It is for you to determine what damages, if any, have been proved.
24 Your award must be based upon evidence and not upon speculation,
guesswork or conjecture.
25
The Court will not use the parties’ stipulated instruction No. 31 (which is based on
26
instruction 5.6). See Adkins v. Facebook, Inc., 424 F.Supp.3d 686, 695 (N.D. Cal. 2019)
27
(“California has long held that it is fundamental that a negligent act is not actionable unless it
1 results in injury to another. California also holds that nominal damages, to vindicate a technical
2 right, cannot be recovered in a negligence action, where no actual loss has occurred.”) (cleaned
3 up). Instead, the Court will use the following instruction 5.6:
4 The law that applies to this case authorizes an award of nominal
damages for Plaintiff’s First Amendment and Eighth Amendment
5 claims. If you find for Plaintiff on his First Amendment or Eighth
Amendment claim but you find that he has failed to prove damages
6 as defined in these instructions, you must award nominal damages.
Nominal damages may not exceed one dollar.
7
If you find for Plaintiff on his negligence claim but you find that he
8 has failed to prove damages as defined in these instructions, you may
not award nominal damages.
9
10 The Court will use the parties’ stipulated instruction 32, which is based on instruction 5.5,
11 modified as to state law claims. See Meier v. City of Brisbane, No. 21-cv-5504-DMR, 2022 WL
12 523327, at *6 (N.D. Cal. Feb. 2, 2022) (“Regarding the negligence claim against Sevilla, punitive
13 damages are available under California law if a plaintiff proves ‘by clear and convincing evidence
14 that the defendant has been guilty of oppression, fraud, or malice.’”) (citing Cal. Civ. Code §
15 3294(a)).
16 The Court will use stipulated instructions Nos. 33 and 34, which are based on instructions
17 3.1 and 3.3. For stipulated instruction No. 33, the Court will replace “presiding juror” with
18 “foreperson.”
19 The Court will not use the parties’ stipulated instruction 35. Instead, the Court will use the
20 following instruction 3.5:
21 A verdict form has been prepared for you. After you have reached
unanimous agreement on a verdict, your foreperson should complete
22 the verdict form according to your deliberations, sign and date it, and
advise the courtroom deputy that you are ready to return to the
23 courtroom.
24 From the parties’ filing, the Court can tell that proposed instructions 1–18 are meant to be
25 preliminary jury instructions, and proposed instructions 19–35 are meant to be the final jury
26 instructions. However, some of the preliminary instructions (e.g., what is evidence, what is not
27 evidence, burden of proof, credibility of witnesses) should presumably be repeated in the final
1 Court ORDERS the parties to file a joint statement no later than October 9, 2025, stating their
2 || views on which preliminary jury instructions should be repeated in the final instructions.
3 IT IS SO ORDERED.
4
5 Dated: September 30, 2025
6 TAY \. Ly _
THOMAS S. HIXSON
7 United States Magistrate Judge
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