9.2 SECTION 1983 CLAIM AGAINST DEFENDANT IN INDIVIDUAL CAPACITY—ELEMENTS AND BURDEN OF PROOF
In order to prevail on [his] [her] § 1983 claim against the defendant [name of individual defendant], the plaintiff must prove each of the following elements by a preponderance of the evidence:
1. the defendant acted under color of law; and
2. the act[s] of the defendant deprived the plaintiff of [his] [her] particular rights under [the laws of the United States] [the United States Constitution] as explained in later instructions.
A person acts "under color of 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] [I instruct you] that the defendant acted under color of law.]
If you find the plaintiff has proved each of these elements, and if you find that the plaintiff has proved all the elements [he] [she] is required to prove under Instruction [specify the instruction[s] that deal with the particular right[s]], your verdict should be for the plaintiff. If, on the other hand, the plaintiff has failed to prove any one or more of these elements, your verdict should be for the defendant.
Use this instruction only in conjunction with an applicable "particular rights" instruction, such as Instructions 9.9–9.25. Such an instruction should set forth the additional elements a plaintiff must establish to prove the violation of the particular constitutional right or federal law at issue. Because this instruction is phrased in terms focusing the jury on the defendant’s liability for certain acts, the instruction should be modified to the extent liability is premised on a failure to act in order to avoid any risk of misstating the law. See Clem v. Lomeli, 566 F.3d 1177, 1181-82 (9th Cir. 2009).
This instruction does not include the phrase "the acts or omissions of the defendant were intentional" (as in an earlier version of the instruction) because § 1983 "contains no independent state-of-mind requirement" apart from what is necessary to state a violation of the underlying constitutional right. Daniels v. Williams, 474 U.S. 327, 328 (1986).
In order to be individually liable under § 1983, an individual must personally participate in an alleged rights deprivation. Jones v. Williams, 297 F.3d 930, 934 (9th Cir.2002). The elements of a § 1983 claim are "(1) the action occurred ‘under color of state law’ and (2) the action resulted in the deprivation of a constitutional right or federal statutory right." Id. (quoting Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327 (1986)). For cases interpreting "color of law," see Anderson v. Warner, 451 F.3d 1063 (9th Cir.2006),and McDade v. West, 223 F.3d 1135, 1139–40 (9th Cir.2000).