Clem

I. BACKGROUND

A. Factual Background

Although this is an appeal from a jury verdict, because we conclude the jury instructions were erroneous, “the prevailing party is not entitled to have disputed factual questions resolved in his favor because the jury’s verdict may have resulted from a misapprehension of law rather than from fac- tual determinations in favor of the prevailing party.” Gambini v. Total Renal Care, Inc., 486 F.3d 1087, 1093 (9th Cir. 2007) (quoting Swinton v. Potomac Corp., 270 F.3d 794, 805-06 (9th Cir. 2001)). The record therefore establishes the follow- ing:

Clem is an inmate in the custody of the California Depart- ment of Corrections at the Mule Creek State Prison in Ione, California. Clem’s cellmate during the time relevant to this case was Inmate Godman (“Godman”), who was and is serv- ing a life sentence for murder.

Clem returned to his cell for an afternoon head-count and found Godman in the cell, drunk. Godman had apparently CLEM v. LOMELI 6571 consumed a large quantity of home-made wine. As soon as Clem entered his cell, Godman told Clem “I’ll kill you” and threatened to beat him. Clem testified that, feeling frightened, he…