Gilberto DeJesus v. Sergeant Willie J. Lewis

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-11649
________________________
D.C. Docket No. 9:17-cv-80883-DMM
GILBERTO DEJESUS,
Plaintiff - Appellant,
versus
SERGEANT WILLIE J. LEWIS,
INSPECTOR CHRISTOPHER DEAN CASTNER,
each in his individual capacity,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(September 21, 2021)
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Before MARTIN, ROSENBAUM, and LUCK, Circuit Judges.
MARTIN, Circuit Judge:
Gilberto DeJesus says that in 2016, he was sexually assaulted by a prison
official. That official, Sergeant Willie J. Lewis, responds that the assault never
happened. Mr. DeJesus had an attorney to represent him in court, but shortly
before trial, the District Court allowed counsel to withdraw. Mr. DeJesus was ill-
prepared for trial because he had not been provided discovery materials. He was
not given transcripts of the depositions taken in discovery until the morning of his
trial, and tried to read through them—for the first time—during the morning break.
Ultimately Mr. DeJesus presented only his own testimony to show the jury that the
sexual assault he alleged he suffered amounted to cruel and unusual punishment.
The jury ruled in favor of the Defendants.
On appeal, Mr. DeJesus argues the District Court made three errors. First,
he says the District Court’s instruction to the jury about what he had to prove to
succeed on his Eighth Amendment claim against Sergeant Lewis misstated the law
and increased his burden of proof. Second, he claims the court should have
granted his motion to continue the trial in order to allow him to prepare his case.
Finally, he argues that exceptional circumstances warranted the appointment of
counsel after his former attorney withdrew from representation.
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We recognize that no trial can be perfect. However, this record reflects an
error here that we must address in order to clarify the rules governing allegations
of sexual assault made by prisoners. That is to say, at a minimum, when a prisoner
proves that a prison official, acting under color of law and without legitimate
penological justification, engages in a sexual act with the prisoner, and that act was
for the official’s own sexual gratification, or for the purpose of humiliating,
degrading, or demeaning the prisoner, the prison official’s conduct amounts to a
sexual assault in violation of the Eighth Amendment. Here, no one disputes that
the conduct alleged served no legitimate penological purpose, so the jurors should
have been instructed that the only fact they had to find was whether the sexual
assault occurred. On this record, however, Mr. DeJesus has not met his burden to
show that any errors made during the trial of his case were likely to have resulted
in an incorrect verdict. We therefore affirm the District Court’s order of final
judgment in favor of Sergeant Lewis and Inspector Christopher Dean Castner.1
I. BACKGROUND
A. THE INCIDENT
Mr. DeJesus, through counsel, filed suit in the U.S. District Court for the
Southern District of Florida in July 2017. He alleged that on the morning of
1
Sergeant Lewis and Inspector Castner are both appellees, but Mr. DeJesus’s arguments
on appeal relate only to the claim against Sergeant Lewis.
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February 4, 2016, he left G Dormitory of South Bay Correctional Facility to go
“drop a grievance at the grievance box.” Mr. DeJesus said that as he walked back
to G Dormitory, through the breezeway connecting the housing units, Sergeant
Lewis pulled him out of the line and asked him, “[Y]ou like writing grievances,
huh?” Mr. DeJesus alleged that Sergeant Lewis then pulled the elastic band of
DeJesus’s pants and said “you have a nice ass.” When Mr. DeJesus tried to pull
away, Sergeant Lewis “body slammed him to the ground.” Next, according to Mr.
DeJesus, Sergeant Lewis handcuffed him, digitally penetrated his anus, and said
“this is what I think of you grievance writers.” After this, Sergeant Lewis escorted
Mr. DeJesus to administrative confinement, where DeJesus declared a
psychological emergency so that he would be transferred to mental health
confinement because “he was in fear that [Sergeant Lewis] was taking him to
confinement to sexually assault him again.”
Mr. DeJesus filed a grievance detailing this incident a few days later. About
a month after he filed the grievance, Mr. DeJesus said Inspector Castner came to
his cell and threatened to transfer him to another prison if he did not withdraw the
grievance against Sergeant Lewis.
Mr. DeJesus brought two claims under 42 U.S.C. § 1983 against Sergeant
Lewis and Inspector Castner. Mr. DeJesus alleged that Sergeant Lewis violated his
Eighth Amendment right to be free from cruel and unusual punishment by sexually
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assaulting him. And he alleged that Inspector Castner violated his Eighth
Amendment rights by improperly threatening retaliation for his exercise of the
prison’s grievance procedures.2 Both Defendants denied any wrongdoing.
B. PRE-TRIAL LITIGATION
Two days after Mr. DeJesus filed suit, the District Court set a trial date of
March 19, 2018. The parties then conducted discovery. Defense counsel deposed
Mr. DeJesus twice. 3 Other prisoners and prison staff were also deposed.
In December 2017, Mr. DeJesus’s attorney moved to withdraw from the
case. Counsel broadly cited irreconcilable differences and noted he did not know
if Mr. DeJesus would consent to the motion to withdraw. The District Court
denied counsel’s motion, explaining that the late stage of the case combined with
the uncertainty as to whether Mr. DeJesus consented to counsel’s withdrawal
meant the court required more information about the nature of the irreconcilable
differences counsel cited. The court said counsel must confer with Mr. DeJesus
2
Mr. DeJesus’s claim against Inspector Castner was ultimately framed as arising under
the First Amendment.
3
Mr. DeJesus’s deposition had to be rescheduled because on the first date, defense
counsel was not able to bring a computer into the prison to share with DeJesus the security
camera footage of the alleged incident. Defense counsel participated in both depositions in
person, but Mr. DeJesus’s own attorney was present only by telephone.
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and, if irreconcilable differences remained, counsel could file another motion
describing “in detail” the nature of those differences. 4
Mr. DeJesus’s counsel filed a renewed motion to withdraw. Counsel
explained that the irreconcilable differences were based on information that
became available in discovery. First, counsel said he learned that during the
incident, Sergeant Lewis seized from Mr. DeJesus a package of “spice,” which is a
synthetic cannabinoid that was considered contraband. Second, Julian Almeda,
another prisoner, said Mr. DeJesus had a reputation for selling spice. And finally,
counsel explained that Mr. Almeda, who previously provided a sworn affidavit
saying that Sergeant Lewis sexually assaulted Mr. DeJesus, recanted his statement
during his deposition and instead testified that not only did DeJesus write the
affidavit, but Almeda was in confinement on the date of the incident and had no
personal knowledge of it.
On January 22, 2018, less than two months before trial (and before Mr.
DeJesus’s response was filed),5 the District Court found there were irreconcilable
4
Before the District Court denied counsel’s motion to withdraw, Mr. DeJesus submitted
a motion for appointment of counsel, offering more details about his relationship with current
counsel. The court did not receive Mr. DeJesus’s motion until January 9, 2018, and did not
consider it in ruling on counsel’s motion to withdraw. Nevertheless, for purposes of this appeal
it is relevant that in his motion for appointment of counsel, Mr. DeJesus informed the court he
did not “know if discovery was completed” and he had never been given discovery.
5
Mr. DeJesus filed a response to counsel’s renewed motion on January 19, before the
District Court ruled on it. But Mr. DeJesus had to rely on the prison to file his legal documents,
and the court did not receive it until January 29. In his response, Mr. DeJesus again argued that
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differences between DeJesus and his attorney and granted counsel’s second motion
to withdraw. The court also denied Mr. DeJesus’s earlier motion for appointment
of counsel, summarily finding that he had not shown “exceptional circumstances”
requiring the appointment of counsel.
Mr. DeJesus moved for reconsideration of both these rulings. He argued the
court ruled without giving him the opportunity to explain why exceptional
circumstances existed. He also filed two additional motions. One was another
motion for appointment of counsel, in which Mr. DeJesus cited his lack of legal
training and the fact that his placement in “Protective Management” meant he had
limited access to the law library, which restricted his ability to litigate his case.
The other was a motion to continue the upcoming trial, in which he explained that
his access to the law library was severely impaired because he was “in protective
management due to being battered by gang members.”
The District Court granted Mr. DeJesus’s motion for reconsideration,
recognizing it had ruled on counsel’s motion to withdraw without hearing from
DeJesus. Nevertheless, the court reaffirmed its earlier decisions. The District
his counsel engaged in professional misconduct by not being physically present during his
deposition. Mr. DeJesus also argued that his counsel should have investigated the Defendants’
claim that Mr. Almeda was lying. Mr. DeJesus said that if his counsel had done so, prison
records would have contradicted Almeda’s story that he was in confinement on the date of the
claimed assault. Mr. DeJesus also indicated that his counsel “never discussed” with him the
information counsel cited as the reasons for their irreconcilable differences.
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Court noted that, by Mr. DeJesus’s own account, there were irreconcilable
differences between him and counsel that warranted counsel’s withdrawal. The
court also cited its “broad discretion” to decide whether to appoint counsel in civil
cases and found there were no exceptional circumstances warranting appointment
of counsel. This was because Mr. DeJesus “lost” his counsel only after counsel
“sought to be removed based on [DeJesus’s] credibility,” and also because the
court viewed DeJesus’s legal claims as straightforward. The District Court also
denied Mr. DeJesus’s motion to continue the trial but said he could renew his
argument for a continuance.
C. TRIAL
The case proceeded to trial as scheduled. On the day trial began, Mr.
DeJesus filed a third motion for appointment of counsel, arguing that he suffered
from a long history of mental health issues and that Sergeant Lewis’s sexual
assault had affected him psychologically. Mr. DeJesus said he had made “repeated
efforts to obtain a lawyer,” because an attorney would be better equipped to handle
the conflicting trial testimony than someone unfamiliar with civil law. During a
pretrial colloquy with the parties, the District Court denied Mr. DeJesus’s third
motion, explaining that “[b]ased on the filings and including the filings of Mr.
DeJesus’s previous counsel, I have some doubts about the credibility of the case,”
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and, especially because counsel “has withdrawn for ethical reasons, appointing a
lawyer without pay . . . would be [in]appropriate.”
The District Court also addressed some housekeeping matters. It noted that
defense counsel had provided Mr. DeJesus with copies of deposition transcripts,
which he requested a few days before at the final status conference. And the court
denied Mr. DeJesus’s request, also made at the status conference, to have another
prisoner come in to testify as a witness. The court said the prisoner could not
testify because the Department of Corrections requires a request be submitted 14
days in advance and Mr. DeJesus had not listed this particular witness on his
witness list.6
In Mr. DeJesus’s opening statement to the jury, he explained the basic facts
as alleged in his complaint. He specifically described how, after submitting a
grievance, Sergeant Lewis pulled him out of line, said he had “a nice ass,” body
slammed him, handcuffed him, pulled down his pants, and digitally penetrated his
anus. Mr. DeJesus explained that the assault may have been in retaliation for a
grievance he earlier wrote about an “Officer King,” who he said was dating
Sergeant Lewis and who referred to DeJesus using a racial slur. Defendants’
opening statement laid out an alternative version of the story:
This is a case about an inmate who was on disciplinary
probation at the prison . . . , made a hand-to-hand drug
6
Mr. DeJesus’s witness list was filed by his former counsel in November 2017.
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transaction, got caught by Sergeant Lewis, attempted to
hide the drugs in the back of his pants, refused to give them
over to Sergeant Lewis, had to be taken to the ground by
Sergeant Lewis, where the drugs were ultimately
recovered, with the assistance of Inspector Castner and
Inspector [Marc] Simmons[.]
Court then recessed for a morning break, which Mr. DeJesus used to begin
reading the five deposition transcripts defense counsel provided. When the parties
came back, but before the jury was seated, the court asked Mr. DeJesus whether he
wanted to have any of the depositions read to the jury. Mr. DeJesus said he did not
know yet because this was the first time he’d seen the transcripts. 7 The court asked
defense counsel whether anything in the transcripts would be useful to Mr.
DeJesus. Counsel replied that the three prisoner depositions were “absolutely not
useful,” and actually contradicted Mr. DeJesus’s story, which counsel opined was
“one of the reasons why [DeJesus’s counsel] wanted to withdraw from the case.”
Based on that description, the District Court told Mr. DeJesus “you probably are
going to decide you don’t want to use [the deposition transcripts], but I’ll give you
a chance to read them” during the lunch break.
After the jury was brought back in, Mr. DeJesus testified on his own behalf
and told the same story he recounted in his opening statement. Defense counsel
cross-examined him, at one point asking Mr. DeJesus to look at his deposition to
7
The District Court asked Mr. DeJesus whether he had ever asked his lawyer for the
transcripts. Mr. DeJesus said he did, but that his former counsel never sent them to him.
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refresh his recollection about something. Mr. DeJesus interrupted to tell the court
that his lawyer “never gave me none of those depositions or none of this to prepare
for this.” Defense counsel then tried to impeach Mr. DeJesus with his deposition
testimony, but DeJesus said he could not remember and repeated that he did not
have copies of any depositions and was “not prepared for this.” He continued: “I
asked to please give me some type of help with counsel . . . . I’m not prepared for
this.” After some additional questioning, Mr. DeJesus again asked for counsel, but
the District Court denied his request.
Mr. DeJesus took the lunch break to try to read the deposition transcripts he
was given that morning. After lunch, the District Court again asked whether he
had decided to read any deposition testimony into the record. Mr. DeJesus said he
had not finished reading the depositions, but would probably like to introduce the
testimony of Ruben Ruiz. Based on representations from defense counsel, the
court explained that if Mr. DeJesus introduced Mr. Ruiz’s testimony, the
Defendants would introduce contradictory testimony from other prisoners. Mr.
DeJesus again said he did not know what was in those deposition transcripts, but
ultimately did not introduce any testimony.
After Mr. DeJesus rested his case, the Defendants called several witnesses,
including three other witnesses to the incident, Sergeant Lewis, Inspector Castner,
and Inspector Simmons. These witnesses walked the jury through video
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surveillance of the incident. Sergeant Lewis saw another prisoner pass something
to Mr. DeJesus in the breezeway, who put the object “[i]n the small of his back,
like he was trying to put it in his pants area.” Sergeant Lewis pulled Mr. DeJesus
out of line and patted him down. Mr. DeJesus ignored Sergeant Lewis’s questions
about the object and “acted like he didn’t know what [Lewis] was talking about.”
Sergeant Lewis said Mr. DeJesus tried to break away from him, so he took DeJesus
down to the ground. At this point, Sergeant Lewis could see a bag sticking out of
the top of Mr. DeJesus’s pants. Sergeant Lewis did not have handcuffs on him
because he was not assigned any that morning, and did not have gloves, so he did
not handcuff Mr. DeJesus or try to retrieve the bag.
By this time Inspectors Castner and Simmons noticed the scuffle and headed
towards Sergeant Lewis and Mr. DeJesus. Inspector Simmons handcuffed Mr.
DeJesus. Inspector Castner and Inspector Simmons both testified that they could
see a plastic baggy “sticking out of the top” of Mr. DeJesus’s pants. The baggy
“was not in [Mr. DeJesus’s] body,” rather, DeJesus’s pants were sagging down
slightly and the top of the baggy was “in clear view” sticking out from his pants.
Inspector Simmons put gloves on and removed the bag without touching Mr.
DeJesus’s body.
The prison officials took Mr. DeJesus to the medical unit (as is required
before a prisoner enters confinement), and then escorted him to administrative
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confinement. While he was in administrative confinement, Mr. DeJesus said he
was suicidal, so prison officials transferred him for psychological observation.
Prison officials ultimately determined that the plastic baggy found on Mr.
DeJesus contained synthetic cannabinoids referred to as spice. There were
individual packages inside the plastic baggy, which, in Inspector Simmons’s
experience, showed the contraband was probably intended to be sold. Inspector
Simmons filled out a disciplinary report, which noted that Mr. DeJesus had a
package of synthetic cannabinoids “in between his butt cheeks.” Inspector
Simmons said he wrote the report that way “[j]ust [to] specify exactly what part of
[Mr. DeJesus’s] person the drugs were located from.” Mr. DeJesus received the
disciplinary report for possession of narcotics on February 10, 2016, six days after
the incident.
Ten days after that, Mr. DeJesus called the Prison Rape Elimination Act’s
(“PREA”)8 tip line to report that he had been sexually assaulted. The PREA
investigation that followed exonerated Sergeant Lewis of all allegations.
8
Congress unanimously passed PREA, 34 U.S.C. § 30301 et seq., to “establish a zero-
tolerance standard” for sexual assault in United States prisons. See id. §§ 30302(1), 30309(9)–
(11); About – Prison Rape Elimination Act, National PREA Resource Center (last visited Aug. 2,
2021), https://www.prearesourcecenter.org/about/prison-rape-elimination-act. PREA directed
the Attorney General to “publish a final rule adopting national standards for the detection,
prevention, reduction, and punishment of prison rape.” 34 U.S.C. § 30307(a)(1). The rule
established standards for investigating and responding to allegations of sexual abuse committed
against prisoners. 28 C.F.R. §§ 115.61–68, 115.71–73.
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The jury heard more testimony that contradicted Mr. DeJesus’s version of
the events. The Defendants presented additional witnesses, including the prison
grievance coordinator, who said that contrary to Mr. DeJesus’s story, there was no
record showing he submitted a grievance right before the incident with Sergeant
Lewis. And the two named defendants specifically denied the allegations against
them. Inspector Castner said he never threatened to transfer Mr. DeJesus if he
refused to withdraw his grievance against Sergeant Lewis. Sergeant Lewis
testified that he did not sexually assault or make any lewd remarks to Mr. DeJesus.
He also said that he is married and never had any relationship with an “Officer
King.”
During his closing argument, Mr. DeJesus urged the jury to find that
Sergeant Lewis sexually assaulted him. He also told the jury that his lawyer
withdrew from the case “[a]t the last minute” and that he tried to get an attorney,
but the District Court would not appoint one. In the Defendants’ closing argument,
defense counsel recounted the facts as testified to by their witnesses and asked the
jury to judge Mr. DeJesus’s credibility and find that he was lying.
At the end of closing arguments, the District Court gave the jurors their
instructions, including Instruction 5.6, which informed them what Mr. DeJesus had
to prove to succeed on his Eighth Amendment claim against Sergeant Lewis. In
relevant part, the jury was asked to decide two questions: (1) whether “Sergeant
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Willie J. Lewis intentionally committed acts that violated Gilberto DeJesus’s right
to be free from cruel and unusual punishment,” and (2) whether Inspector Castner
violated DeJesus’s First Amendment right to access the courts. After about an
hour of deliberating, the jury returned its verdict. The jury found that neither
Sergeant Lewis nor Inspector Castner violated Mr. DeJesus’s constitutional rights.
Two days later, the District Court entered final judgment in favor of the
Defendants. This is Mr. DeJesus’s appeal.
II. JURY INSTRUCTION 5.6
We begin with Mr. DeJesus’s argument that Instruction 5.6 misstated the
law and informed the jury that he had to prove extra elements in order to succeed
on his Eighth Amendment claim. We review de novo jury instructions to
determine whether they misstate the law or mislead the jury “to the prejudice of the
party who objects to them.” Badger v. S. Farm Bureau Life Ins. Co., 612 F.3d
1334, 1339 (11th Cir. 2010); McNely v. Ocala Star-Banner Corp., 99 F.3d 1068,
1072 (11th Cir. 1996) (reviewing de novo the “subsidiary issue” of whether a jury
instruction accurately reflected the law). However, because Mr. DeJesus failed to
object to Instruction 5.6, we must also determine if any error is plain. Wood v.
President & Trs. of Spring Hill Coll. in City of Mobile, 978 F.2d 1214, 1218 (11th
Cir. 1992).
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Mr. DeJesus argues that, by reading Instruction 5.6, the District Court
instructed the jury that he had the burden of proving sexual assault and excessive
force and malicious intent—which he says is more than necessary—to prove his
Eighth Amendment claim against Sergeant Lewis. He says this Court’s decision in
Sconiers v. Lockhart, 946 F.3d 1256 (11th Cir. 2020), makes clear that sexual
assault is per se excessive force such that the only fact he had to prove was
whether the sexual assault occurred. This being the case, Mr. DeJesus says the
instruction as given was inherently prejudicial (and thus plain error) because it
increased his burden of proof.
We start by looking at the law governing Eighth Amendment sexual assault
claims.
A. THE LAW GOVERNING EIGHTH AMENDMENT SEXUAL ASSAULT
CLAIMS
There are distinct types of claims that can be brought by prisoners alleging
cruel and unusual punishment under the Eighth Amendment. Prisoners can
challenge their conditions of confinement, the excessive use of force against them,
and the deliberate indifference to their serious medical needs. See Thomas v.
Bryant, 614 F.3d 1288, 1303–04 (11th Cir. 2010); see also Sconiers, 946 F.3d at
1265 (stating that proof of an Eighth Amendment violation differs based on the
type of violation alleged). Claims of sexual assault have generally been analyzed
under the legal framework for excessive force claims. See Sconiers, 946 F.3d at
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1265; see also Boxer X v. Harris, 437 F.3d 1107, 1111 (11th Cir. 2006), abrogated
in part by Wilkins v. Gaddy, 559 U.S. 34, 130 S. Ct. 1175 (2010) (per curiam).
The prisoner’s claim must meet both a subjective and an objective component.
The subjective component requires showing that the “force” used was “sadistically
and maliciously applied for the very purpose of causing harm.” Sconiers, 946 F.3d
at 1265 (quotation marks omitted). And, in traditional use-of-force cases, the
objective component looks to whether the officer’s actions were “harmful enough”
or “sufficiently serious.” Id. at 1265 (quotation marks omitted). This excludes de
minimis uses of force. Id. at 1265–66. However, in sexual assault cases, we view
those components a bit differently.
Both parties agree—correctly, in our view—that this case is governed by
Sconiers, which also addressed a prisoner’s allegations that an officer “forcefully
penetrated [the prisoner’s] anus with his finger.” 946 F.3d at 1260–61. Sconiers
held that if an officer acted as Mr. Sconiers alleged—“forcefully shov[ing] his
finger into Sconiers’s unclothed anus after [the officer] had already taken Sconiers
to the ground”—sexual assault “of this type” is malicious and sadistic and thus
satisfies the subjective component. Id. at 1266. Sconiers went on to hold that an
officer who commits this type of action “plainly commits severe sexual abuse of a
prisoner,” thereby satisfying the objective component. Id. (quotation marks
omitted and alteration adopted).
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In Sconiers, as here, there was no question that the conduct alleged was both
sadistic and malicious as well as sufficiently serious. But Sconiers also set forth
four principles that apply in any case involving the sexual assault of a prisoner by a
prison official. First, unlike typical use-of-force cases,9 sexual assault can never
serve any valid penological purpose. Sconiers, 946 F.3d at 1259. Second, as
stated above, sexual assault is a malicious and sadistic action that satisfies the
subjective component of an Eighth Amendment claim. Id. at 1266. Third, sexual
assault is never acceptable under contemporary standards of decency, which
matters for purposes of satisfying the objective component. 10 Sconiers, 946 F.3d at
1259; see id. at 1270–1272 (Rosenbaum, J., concurring) (recounting legislative
enactments “show[ing] an unmistakable near-uniform consensus that sexual abuse
of prisoners by prison guards . . . seriously violates ‘contemporary standards of
decency’”); Crawford v. Cuomo, 796 F.3d 252, 260 (2d Cir. 2015) (holding that
the passage of PREA and states’ laws criminalizing prison officials’ sexual contact
with prisoners make clear that the sexual assault of prisoners “offends our most
9
See, e.g., Wilkins, 559 U.S. at 35, 130 S. Ct. at 1177 (describing prisoner’s allegations
that a prison official “snatched” him off the ground, “slammed him” to the floor, and punched,
kicked, kneed, and choked him) (quotation marks omitted); Hudson v. McMillian, 503 U.S. 1, 4,
112 S. Ct. 995, 997 (1992) (recounting prisoner’s testimony that prison officials punched and
kicked him, while a supervisor told the officers “not to have too much fun”) (quotation marks
omitted).
10
“The objective component of an Eighth Amendment claim is . . . contextual and
responsive to contemporary standards of decency.” Hudson, 503 U.S. at 8, 112 S. Ct. at 1000(quotation marks omitted).
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basic principles of just punishment”). Finally, also related to the objective
component, we look at the “nature” of the force used—and the harm from a sexual
assault is inherently not de minimis. Sconiers, 946 F.3d at 1267 (quotation marks
omitted); Wilkins, 559 U.S. at 39, 130 S. Ct. at 1179.
There is only one conclusion to draw from these principles. In a case
brought by a prisoner alleging sexual assault by a prison official, that sexual
assault necessarily violates the Eighth Amendment. In order for a prisoner to meet
his burden on all elements of his Eighth Amendment claim, then, he need only
show that the prison official committed a sexual assault. This means that the
finders of fact need not consider the amount of force applied, the extent of the
injury inflicted, or any effort the official made to temper the severity of the force
used. Requiring a jury to make findings about the amount of force or the extent of
the injury in cases involving sexual assault improperly suggests that some forms of
sexual assault may be de minimis and thus do not rise to the level of an Eighth
Amendment violation. Sconiers, 946 F.3d at 1259; see also id. at 1272
(Rosenbaum, J., concurring) (“[P]hysical sexual assaults by correctional officers of
inmates violate the Eighth Amendment because no matter how difficult the inmate
is, the official is never justified in punishing him in this manner.”).
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The question left open by Sconiers is what type of conduct qualifies as a
sexual assault.11 We begin to answer that question now. We hold that the “sexual
assault” of a prisoner by a prison official in violation of the Eighth Amendment
occurs when the prison official, acting under color of law and without legitimate
penological justification, engages in a sexual act with the prisoner, and that act was
for the official’s own sexual gratification, or for the purpose of humiliating,
degrading, or demeaning the prisoner. See 18 U.S.C. § 2246(2). At a minimum,
those sexual acts include intentional sexualized touching underneath clothing,12
such as fondling or penetration; coerced sexual activity; combinations of ongoing
harassment and abuse; and exchanges of sexual activity for special treatment or to
avoid discipline.13 Sconiers, 946 F.3d at 1266 (holding that forceful digital
11
Sconiers did not have reason to define sexual assault because the conduct Mr. Sconiers
alleged so clearly contravened his constitutional rights. See 976 F.3d at 1266 (“[I]f a reasonable
jury believed Sconiers’s testimony, it would have to conclude that [the officer] sought to
sexually abuse him. . . . We do not need to linger long over the contours of our standard.”). The
conduct in this case is the same as in Sconiers, and thus also clearly qualifies as sexual assault.
Nevertheless, it is necessary to provide a definition for sexual assault that can be applied to any
set of facts.
12
Some clothed sexualized touching may also qualify as “sexual assault” in violation of
the Eighth Amendment. But as we explain below, those types of allegations will need to be
viewed on a case-by-case basis to evaluate whether they allege a “sexual assault” in violation of
the Eighth Amendment.
13
State and federal legislatures have made clear that conduct of this type is objectively
serious enough to violate the Eighth Amendment. Sconiers, 946 F.3d at 1271 (Rosenbaum, J.,
concurring) (explaining that legislative enactments are “the clearest and most reliable objective
evidence” of what violates contemporary standards of decency (quotation marks omitted)); see
18 U.S.C. §§ 2242, 2246(2) (criminalizing sexual abuse in prisons and defining the conduct that
qualifies as a “sexual act” in violation of the statute); Crawford, 796 F.3d at 259–260 & nn.5–7
20
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penetration of the prisoner’s anus clearly met the objective and subjective
components of an Eighth Amendment claim); Ricks v. Shover, 891 F.3d 468, 478
(3d Cir. 2018) (explaining what types of conduct are “objectively serious” enough
to qualify as a constitutional violation).
A broader range of conduct certainly qualifies as sexual assault, depending
on the facts of a given situation. 14 Such determinations are for the finders of fact to
decide in the first instance. See Ricks, 891 F.3d at 478 (declining to adopt “a
mechanical factors test” into what qualifies as sexual abuse in violation of the
Eighth Amendment because “this inquiry is necessarily contextual, fact-specific,
and to be conducted in the first instance by the District Court”); cf. Jacobellis v.
Ohio, 378 U.S. 184, 197, 84 S. Ct. 1676, 1683 (1964) (Stewart, J., concurring)
(acknowledging that some definitions of sexual acts are difficult to intelligibly
define, “[b]ut I know it when I see it”). Nevertheless, we note it may be helpful for
the fact-finder to consider things like whether the alleged conduct is of a sexual
nature; whether the alleged sexual assault did in fact occur; and whether the prison
(recounting state legislative enactments criminalizing prison officials’ sexual contact with
prisoners and describing Congress’s passage of PREA).
14
We recognize this may include conduct that does not require any physical contact with
a prisoner. See 28 C.F.R. § 115.6(7)–(8) (adopting a broad definition of sexual abuse that
violates PREA); National Standards To Prevent, Detect, and Respond to Prison Rape, 76 FR
6248-01, 2011 WL 318532, at *6250–51 (Feb. 3, 2011) (explaining that DOJ’s proposed
standards use the term sexual abuse because it “captures a broader range of sexual victimization
than rape”). But because this case involves alleged physical contact, we need not and do not
consider whether non-physical contact can constitute “sexual assault” for purposes of
establishing an excessive-force claim under the Eighth Amendment.
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official intended to sexually gratify himself or acted for the purpose of humiliating,
degrading, or demeaning the prisoner. 15
The definition of sexual assault we adopt today is similar to that used in
other jurisdictions. See, e.g., Crawford, 796 F.3d at 254; id. at 259 n.7 (explaining
the definition of sexual assault generally adopted by the majority of states);
Bearchild v. Cobban, 947 F.3d 1130, 1144–45 (9th Cir. 2020) (analyzing a
prisoner’s sexual assault claim alleging that an officer’s conduct began as “an
invasive procedure that served a legitimate penological purpose,” and thus required
showing “that the guard’s conduct exceeded the scope of what was required to
satisfy whatever institutional concern justified the initiation of the procedure”). In
adopting this definition, we recognize there are times when prison officials have a
legitimate penological purpose to touch a prisoner in what may be an invasive
manner, and we also account for the deference owed to prison staff. See Crawford,
796 F.3d at 258; Bearchild, 947 F.3d at 1145; see also 34 U.S.C. § 30309(12)
15
The concurring opinion appears to misunderstand our guidance here. See Concurring
Opinion at 51–53. These considerations apply when the alleged misconduct does not necessarily
qualify as a “sexual assault” under our description above. See supra at 20–21. When a jury finds
that a prison official engaged in an act that fits within one of the “sexual assault” categories (i.e.,
it is an intentional sexualized touching underneath clothing, such as fondling or penetration;
coerced sexual activity; a combination of ongoing harassment and abuse; or an exchange of
sexual activity for special treatment or to avoid discipline, done without legitimate penological
purpose and for the officer’s sexual gratification or for the humiliation of the prisoner), these
inquiries become moot because they are necessarily subsumed by that finding. But when a
prison official allegedly commits some other type of sexual behavior, a jury must consider these
types of inquiries to ascertain whether the conduct rises to the level of a “sexual assault” for
purposes of the Eighth Amendment.
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(excluding “legitimate medical treatment” and other medically necessary invasive
searches from PREA’s definition of rape and sexual abuse).
* * *
Before proceeding with the application of the controlling law to Mr.
DeJesus’s case, we address the ways in which the concurring opinion misconstrues
our holding today. The concurring opinion demonstrates a fundamental
misunderstanding of what our precedent requires in sexual assault cases.
Sconiers and Wilkins make sexual assault an Eighth Amendment violation
in the Eleventh Circuit. The concurring opinion does not dispute this principle.
Rather the concurring opinion conflates what is required to prove the
subjective and objective components of a sexual assault claim, when instead each
requires a distinct inquiry. The concurring opinion says we “read[] out the core
judicial inquiry” of an Eighth Amendment claim. Concurring Opinion at 51. We
have not. We know that the “core judicial inquiry” on this topic looks at “whether
force was applied in a good-faith effort to maintain or restore discipline, or
maliciously and sadistically to cause harm.” Sconiers, 946 F.3d at 1265 (quotation
marks omitted). But this inquiry is the larger question that must include the
subjective and objective components of an Eighth Amendment claim. See id.
(“This standard requires a prisoner to establish two elements—one subjective and
one objective[.]”). Our ruling here for Mr. DeJesus’s case separately addresses
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what is required to prove both the subjective and objective components in a sexual
assault case. Again, our circuit has recognized that sexual assault can never serve
any valid penological purpose and is malicious and sadistic such that a sexual
assault satisfies the subjective component of an Eighth Amendment claim. Id. at
1259, 1266. We also know that sexual assault is never acceptable under
contemporary standards of decency, such that the nature of the force used to
commit a sexual assault is not de minimis. Id. at 1259, 1267; Wilkins, 559 U.S. at
39, 130 S. Ct. at 1179. And this satisfies the objective component.
The concurring opinion’s confusion may arise from the definition of sexual
assault we have adopted. But, contrary to the concurring opinion’s contention, we
have not eliminated either the subjective or the objective component of Eighth
Amendment claims alleging sexual assault. See Concurring Opinion at 51–52.
The definition of sexual assault we utilize here requires a jury to consider whether
the prison official acted without legitimate penological justification and whether
the official’s conduct was for the official’s own sexual gratification, or for the
purpose of humiliating, degrading, or demeaning the prisoner. This inquiry clearly
goes to the prison official’s intent. Contra id. at 51. And although we hold that,
where there is a sexual assault, it is not necessary to inquire into the amount of
force applied, the extent of the injury inflicted, or any effort the official made to
temper the severity of the force used in relation to the objective component, we
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have not done away with the requirement to prove that the prison official’s conduct
was sufficiently severe. See id. at 44, 51 (arguing that we have conflated the issue
of whether a prisoner’s allegations of sexual assault ever occurred with the issue of
whether that alleged conduct, “if true, was excessive” and meets the objective
component). When jurors consider whether the prison official was acting without
legitimate penological justification, they are considering whether the prisoner has
met his burden of proof on the objective component. See Sconiers, 946 F.3d at
1266 (citing, inter alia, Ricks, 891 F.3d at 476) (recognizing that some contact,
such as that involved in a body-cavity search, may amount to an Eighth
Amendment violation if that contact “has no legitimate penological purpose”
(quotation marks omitted)); Crawford, 796 F.3d at 256 (“[A] single act of sexual
abuse may violate the Eighth Amendment if, as in this case, it is entirely gratuitous
and devoid of penological purpose.”). We recognize that not every invasive
touching by a prison official amounts to an Eighth Amendment violation. See
supra at 22. Nevertheless, the concurring opinion disregards the distinction we
plainly made. We treat sexual assault cases differently because sexual assault is
never acceptable under contemporary standards of decency. 16 Thus, when the
16
The concurring opinion cites Wilkins for its proposed two-step analysis, see
Concurring Opinion at 49 (citing Wilkins, 559 U.S. at 40, 130 S. Ct. at 1138), but Wilkins was a
“typical” physical assault case, not a sexual assault case. See Wilkins, 559 U.S. at 35, 130 S. Ct.
at 1177. For this reason, the concurring opinion’s rigid reliance on the two-step analysis in
Wilkins is inapt. See supra at 18 & n.9. Consider the absurd consequences of adopting the
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sexual assault occurs it is necessarily constitutionally excessive in violation of the
Eighth Amendment. Once a jury finds that a sexual assault that meets the
definition here has occurred, it is not logical to also require the jury to go on to
make a separate finding about whether the assault is sufficiently severe.
As we understand the reasons given in the concurring opinion for not joining
our opinion, they reflect a flawed reading of our precedent as well as the holding
we reach today.
B. REVIEWING INSTRUCTION 5.6 FOR PLAIN ERROR
With that, we must review whether Instruction 5.6 misstated the law of this
circuit. If Sergeant Lewis sexually assaulted Mr. DeJesus,17 DeJesus has met his
burden to show an Eighth Amendment violation. See Sconiers, 946 F.3d at 1266–
67. But in order to reverse the jury’s verdict based on a misstatement of law in a
jury instruction, and on plain error review, the error must also be “so fundamental
as to result in a miscarriage of justice.” Farley v. Nationwide Mut. Ins. Co., 197
F.3d 1322, 1329 (11th Cir. 1999) (quotation marks omitted). This type of error
concurring opinion’s proposed two-step test here. After the jury determines Sergeant Lewis
acted as Mr. DeJesus alleged—digitally penetrating DeJesus’s anus for no legitimate penological
or medical purpose but instead for Lewis’s own personal gratification or to demean or humiliate
DeJesus—the concurrence would then have the jury make the redundant determination of
whether this conduct, which qualifies as a sexual assault by any standard, is “severe” enough.
We do not read the Supreme Court’s or this circuit’s precedent to require such an approach.
17
Notably, there was no argument that any penological purpose existed for the specific
conduct alleged here. Thus the issue in Mr. DeJesus’s case was whether the sexual assault
happened at all.
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only happens in “exceptional cases.” Id. (quotation marks and emphasis omitted).
“To meet this stringent standard, a party must prove that the challenged instruction
[1] was an incorrect statement of the law and [2] that it was probably responsible
for an incorrect verdict, leading to substantial injustice.” Id. at 1329–30 (quotation
marks omitted and alteration adopted). Mr. DeJesus therefore must prove that the
instruction misled the jury or left the jury to speculate as to an essential point of
law. Id. at 1330. “In other words, the error of law must be so prejudicial as to
have affected the outcome of the proceedings.” Id. (quotation marks omitted).
1. Misstatement of Law
We review the jury instructions and verdict form together to determine
whether Instruction 5.6 misstated the law or misled the jury. McNely, 99 F.3d at
1072. At Mr. DeJesus’s trial, the jury was instructed that in order for DeJesus to
prevail, he must prove four elements:
First: That Sgt. Lewis intentionally digitally penetrated
Mr. Dejesus’s anus;
Second: That the force used against Mr. Dejesus by Sgt.
Lewis was excessive;
Third: That Sgt. Lewis’s conduct caused Mr. Dejesus’s
injuries; and
Fourth: That Sgt. Lewis acted under color of law.
Elaborating on the second element, the District Court told the jurors they must
decide
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whether any force used in this case was excessive based
on whether the force, if any, was applied in a good-faith
effort to maintain or restore discipline, or instead whether
it was applied maliciously or sadistically to cause harm.
In making that decision you should consider the amount of
force used in relationship to the need presented; the motive
of Sgt. Lewis; the extent of the injury inflicted; and any
effort made to temper the severity of the force used. Of
course, officers may not maliciously or sadistically use
force to cause harm regardless of the significance of the
injury to the prisoner. But not every push or shove—even
if it later seems unnecessary—is a constitutional violation.
Also, an officer always has the right to use the reasonable
force that is necessary under the circumstances to maintain
order and ensure compliance with jail or prison
regulations.
The verdict form tasked the jury with finding whether Sergeant Lewis
“intentionally committed acts that violated Gilberto Dejesus’s right to be free from
cruel and unusual punishment.”18 Our job here is to apply the principles governing
Eighth Amendment sexual assault claims and decide whether, based on the entirety
of Instruction 5.6 and the verdict form, the jurors understood the issues and were
not misled. 19
18
If the jury answered yes to the first question, they were also required to determine
whether Sergeant Lewis acted under color of law; and if so, whether Sergeant Lewis’s conduct
caused Mr. DeJesus’s injuries.
19
The Ninth Circuit recently addressed this precise issue in a case alleging sexual assault
by a prison official. See Bearchild, 947 F.3d at 1135. Because the Ninth Circuit principles
governing Eighth Amendment sexual assault claims are consistent with those recognized by our
Court, we find Bearchild persuasive. See Bearchild, 947 F.3d at 1144–45; Sconiers, 946 F.3d at
1259, 1266–67.
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Here, Instruction 5.6 required the jury to find both that the sexual assault
occurred and that the force used against Mr. DeJesus was excessive. The jurors
were not told that conduct amounting to a sexual assault is “by definition”
sufficiently severe to qualify as an Eight Amendment violation. Bearchild, 947
F.3d at 1145; see Sconiers, 946 F.3d at 1266. Instead the jury was instructed to
consider, in determining whether the force was excessive, “the amount of force
used in relationship to the need presented,” and “any effort made to temper the
severity of the force used.” But these directions were likely to mislead the jurors.
The jury was never told that, due to the inherent nature of a sexual assault, proving
an Eighth Amendment violation does not require an additional finding about the
extent of physical force used. See Sconiers, 946 F.3d at 1259, 1267 (citing
Wilkins, 559 U.S. at 39, 130 S. Ct. at 1179); Bearchild, 947 F.3d at 1145–46. It
requires only proving that the sexual assault occurred. Further, the instruction to
the jury that they consider the “extent of the injury inflicted,” suggested that Mr.
DeJesus was required to show Sergeant Lewis’s actions caused physical injury.
But this is not what our sexual-assault excessive-force precedent requires.
Sconiers, 946 F.3d at 1267.
In sum, Instruction 5.6 misstated the law governing an Eighth Amendment
claim in a sexual assault case. We offer no criticism of Eleventh Circuit Pattern
Instruction 5.6 in the context of excessive-force cases, and note that no model jury
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instruction for Eighth Amendment sexual assault claims currently exists. To
reiterate, Eighth Amendment violations premised on a prison official’s sexual
assault of a prisoner are treated differently. Thus, when the District Court relied
upon the more general pattern instruction for excessive force, it committed error in
the context of a claim of sexual assault.
2. Prejudice
Having established error, Mr. DeJesus must still show he was prejudiced by
the misstatement of law in Instruction 5.6. See Farley, 197 F.3d at 1329–30. He
has not met this burden. We conclude that the instruction was likely not
“responsible for an incorrect verdict” that would have affected the outcome of the
trial, id., because the evidence reasonably supports the jury’s finding that no sexual
assault occurred. We briefly discuss the evidence again here.
Mr. DeJesus testified that Sergeant Lewis sexually assaulted him and made a
lewd remark. As documentary evidence, Mr. DeJesus submitted the disciplinary
reports filed after the incident, which provided a description of the incident:
“DeJesus had a package containing 2 smaller packets containing 12 grams of (red)
K-2 spice on his person in between his butt cheeks.”20 He also submitted a Florida
regulation titled “Searches of Inmates,” which stated that if an officer believes a
20
At trial, Mr. DeJesus took the position that the contraband was not his and Sergeant
Lewis planted it on him.
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situation warrants the cavity search of a prisoner, certain procedures must be
followed, including that medical personnel must perform the cavity search. See
Fla. Admin. Code Ann. R. 33-602.204(3) (2020).
The Defendants’ version of the facts, however, differs greatly. Sergeant
Lewis expressly denied Mr. DeJesus’s version of the events. He said he witnessed
another prisoner pass something to Mr. DeJesus, who put the object in the back of
his pocket or the back of his pants. It was this that caused Sergeant Lewis to
confront Mr. DeJesus. Sergeant Lewis, Inspector Castner, and Inspector Simmons
all testified that Simmons, not Lewis, handcuffed Mr. DeJesus after Simmons and
Castner arrived to help. The three prison officials also testified that the plastic bag
of what they believed to be contraband was in plain view, sticking out of the top of
Mr. DeJesus’s pants near the small of his back. And, again, all three officials
testified that Inspector Simmons (who was wearing gloves) removed the object that
was sticking out of Mr. DeJesus’s pants. Inspector Simmons testified that when he
wrote the disciplinary reports, he wrote the contraband was found between Mr.
DeJesus’s “butt cheeks” because he wanted to “specify exactly what part of
[DeJesus’s] person the drugs located were from.” The contraband “was not in his
body”; rather, Mr. DeJesus’s pants were sagging down and the bag was sticking
out near “the top of [his] buttocks” so Inspector Simmons “didn’t even have to
touch [DeJesus’s] body to remove those drugs.”
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The jury also heard from several witnesses that the PREA investigation into
the alleged assault cleared Sergeant Lewis of any misconduct. The jury heard
other evidence that Mr. DeJesus had previously been convicted of crimes of
dishonesty and that there was no record of DeJesus filing a grievance before the
incident—which was the reason he said he was in the breezeway in the first place.
The jury was left to decide whether Sergeant Lewis sexually assaulted Mr.
DeJesus. In response to the question, posed on the verdict form as to whether
Sergeant Lewis “intentionally committed acts” that violated Mr. DeJesus’s right to
be free from cruel and unusual punishment, the jury said he did not. Mr. DeJesus
argues that based on the instructions and the use of a general verdict form, the jury
could have based its verdict on something other than a finding that the assault
occurred. But because the evidence presented to the jury was offered to prove or
disprove the fact of the assault, Mr. DeJesus’s argument does not persuade us. Cf.
Bearchild, 947 F.3d at 1135, 1148 (holding that the erroneous jury instruction
prejudiced Bearchild because the officer was arguing the pat-down was invasive
but permissible, not that it never happened, such that the jury still “likely would
not have imposed liability” on the officer even if the jury disbelieved the officer).
On these facts, we recognize that Instruction 5.6 misstated the law.
Nevertheless, Mr. DeJesus failed to meet his burden to show the instruction was
responsible for an incorrect verdict.
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III. MOTIONS FOR APPOINTMENT OF COUNSEL AND A
CONTINUANCE
We next turn to Mr. DeJesus’s challenges to the District Court’s denials of
his motion for a continuance and his motions for appointment of counsel. We
review each ruling for abuse of discretion. Smith v. Fla. Dep’t of Corr., 713 F.3d
1059, 1063 (11th Cir. 2013) (per curiam) (denying motion to appoint counsel);
Rink v. Cheminova, Inc., 400 F.3d 1286, 1296 (11th Cir. 2005) (denying motion
for continuance). Mr. DeJesus relies on the same procedural history to argue that
the District Court abused its discretion in denying each claim here, but we view the
District Court’s denial of Mr. DeJesus’s request for a continuance as requiring
more attention. We therefore begin with that motion.
A. REQUEST FOR CONTINUANCE
In determining whether the District Court abused its discretion in denying a
continuance, we consider: (1) the moving party’s diligence in his efforts to prepare
his case before trial; (2) the likelihood that the need for a continuance would have
been remedied had the continuance been granted; (3) the extent to which granting
the continuance would have inconvenienced the court and the opposing party; and
(4) the extent to which the moving party might have suffered harm as a result of
the district court’s denial. Rink, 400 F.3d at 1296. This Court has called the fourth
factor the “most important[]” factor, and has required the moving party to prove he
was “extreme[ly]” or “severely” prejudiced. Quiet Tech. DC-8, Inc. v. Hurel-
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Dubois UK Ltd., 326 F.3d 1333, 1351 (11th Cir. 2003); Rink, 400 F.3d at 1296(quotation marks omitted).
The District Court swiftly rejected Mr. DeJesus’s request for a continuance,
citing DeJesus’s assertion that he was in protective custody and could not access
the law library as the reasons for denying a continuance. But Mr. DeJesus offered
another reason for needing a continuance—so that he “may properly prepare” for
trial. And this wasn’t the first time Mr. DeJesus told the court about his difficulty
preparing for trial. In previous motions, he told the District Court that his former
counsel did not discuss with him the facts revealed in discovery and reiterated that
he did not “know if discovery was completed” because that “discovery has never
been furnished to” him. At the status conference held one week before trial, Mr.
DeJesus again told the District Court he had not received any deposition
transcripts, including his own, and he did not know what they contained. Mr.
DeJesus was provided with deposition transcripts on the morning of trial, but did
not have time to read them and reiterated at least six times (including in his closing
argument to the jury) that he was unable to prepare for trial. Based on these facts,
Mr. DeJesus argues that all four continuance factors strongly favored granting his
request for a continuance.
The first three factors—diligence, remedy, and inconvenience—weigh in
Mr. DeJesus’s favor. Rink, 400 F.3d at 1296. As described, Mr. DeJesus
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consistently said he had not been provided with discovery, including deposition
transcripts. This shows he was diligent in trying to prepare his case. Id. Second,
the need for a continuance would have been remedied had the continuance been
granted and the deposition transcripts provided. With a continuance Mr. DeJesus
would have at least had a chance to read the depositions and make an informed
choice about whether to introduce any of the deposition testimony. See id.; cf.
Smith, 713 F.3d at 1064–65 (holding that “[u]nder the more lenient standards
afforded to pro se litigants, Smith made a sufficient showing . . . to the district
court that he was unable to present essential facts” when he told the court “he was
not provided with his deposition transcript and other evidence was not produced”).
Third, there is no evidence that granting the continuance would have
inconvenienced the Defendants. We know this was a one-day trial, which is
presumably easier to reschedule than a multi-day trial. Contra Quiet Tech. DC-8,
326 F.3d at 1351 (finding that this factor weighed against continuance when trial
lasted three weeks and rescheduling would have been a burden on the court). And,
as Mr. DeJesus points out, the Defendants have never argued they would suffer any
inconvenience as a result of a continuance. Rink, 400 F.3d at 1296.
However, Mr. DeJesus is still required to show he was prejudiced. Quiet
Tech. DC-8, 326 F.3d at 1351. The timeline enforced against Mr. DeJesus was
harsh, and reflects that his decision not to introduce deposition testimony at trial
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may not have been an informed decision. Mr. DeJesus was given an hour-and-a-
half (an hour-and-fifteen-minute lunch break and a fifteen-minute recess) to read at
least three deposition transcripts of unknown length. When he told the court he
was unable to finish reading them during those breaks, the court responded, “Well,
we need to get this done.” The court pushed Mr. DeJesus to make a decision,
telling him to rely on defense counsel’s description of the content of the
depositions, which “d[idn’t] sound good.”
Even so, on this record, we cannot say that allowing a continuance to review
discovery would have changed the jury’s verdict. See Quiet Tech. DC-8, 326 F.3d
at 1351 (finding no prejudice as the result of the denial of the continuance because
the movant’s Daubert challenge “is unavailing on its merits”); Rink, 400 F.3d at
1296 (applying and characterizing Quiet Tech. DC-8 as holding that there is no
harm “where the grant of a continuance would not have changed the disposition on
the merits”). We briefly recount the depositions of three prisoners that were not
timely provided to Mr. DeJesus.21
First, Julian Almeda originally provided an affidavit swearing that Sergeant
Lewis sexually assaulted Mr. DeJesus. However, in his deposition, Mr. Almeda
testified that Mr. DeJesus wrote the affidavit and that Almeda was not present (and
21
Although the deposition transcripts themselves are not in the record, the record
contains descriptions of some of the deponents’ testimony.
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was in fact in confinement) on the day of the incident. Mr. Almeda also testified
that Mr. DeJesus had a reputation for selling spice, which is another name for the
synthetic cannabinoids found on DeJesus. Second, Bernard Terry testified he did
not see any physical altercation but did see Sergeant Lewis try to pull something
from Mr. DeJesus’s pants. Finally, Ruben Ruiz, Mr. DeJesus’s friend, said he
never saw the act described by DeJesus, and indeed saw DeJesus try to run from
Sergeant Lewis as Lewis was giving DeJesus a command to stop.
Based on this testimony—and assuming Mr. DeJesus’s motion for a
continuance had been granted, he had been able to review each deposition, and had
chosen to introduce any of them at trial—the jury would have heard facts that
contradicted DeJesus’s story. In particular, if Mr. DeJesus introduced favorable
testimony from Mr. Ruiz, as he contemplated, the Defendants would have
introduced Mr. Almeda’s and Mr. Terry’s unfavorable testimony. Mr. Almeda’s
and Mr. Terry’s testimony would have corroborated the defense witnesses’
testimony and depicted Mr. DeJesus as not credible. It is highly unlikely that
introducing the deposition testimony would have swayed the jury to find in Mr.
DeJesus’s favor. On this record, Mr. DeJesus has not met his burden to show the
District Court abused its discretion by denying the continuance. See Quiet Tech.
DC-8, 326 F.3d at 1351.
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Although we hold that Mr. DeJesus’s challenge to the District Court’s denial
of his motion for a continuance fails, we take this opportunity to emphasize the
need to exercise care to remedy a prisoner’s inability to prepare for trial after his
attorney withdraws from the case. Cf. Griffith v. Wainwright, 772 F.2d 822, 825
& n.6 (11th Cir. 1985) (per curiam) (holding that courts should exercise “especial
care” to provide pro se prisoners with notice of summary judgment procedures “so
that any rights that such a litigant might have will not be extinguished merely
through failure to appreciate the subtleties of modern motion practice”).
B. APPOINTMENT OF COUNSEL
Next we turn to the District Court’s denials of Mr. DeJesus’s motions for
appointment of counsel. To fall within the “exceptional circumstances” warranting
appointment of counsel in a civil case, the “key is whether the pro se litigant needs
help in presenting the essential merits of his or her position to the court.” Smith,
713 F.3d at 1065 (quotation marks omitted). No single factor is dispositive, but the
totality of the circumstances may tip the balance in favor of appointing counsel.
See id. The factors include: (1) the type and complexity of the case; (2) whether
the plaintiff is capable of adequately presenting his case; (3) whether the plaintiff is
in a position to adequately investigate the case; (4) whether the evidence “will
consist in large part of conflicting testimony so as to require skill in the
presentation of evidence and in cross examination”; and (5) whether the
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appointment of counsel would be of service to the parties and the court “by
sharpening the issues in the case, shaping the examination of witnesses, and thus
shortening the trial and assisting in a just determination.” Ulmer v. Chancellor,
691 F.2d 209, 213 (5th Cir. 1982). 22 The District Court may also inquire into
whether the plaintiff has made any effort to secure private counsel. See id.Courts have granted motions for appointed counsel when the plaintiff’s
claims are based on widespread evidence that he did not personally experience;
when there are “discovery issues,” like not being provided copies of deposition
transcripts or being prohibited from communicating with potential witnesses; or
when there is other “suspect conduct” by the defendant, such as disregarding a
court directive to provide the plaintiff with a copy of his own deposition transcript.
See Smith, 713 F.3d at 1062, 1065. Courts may also consider the plaintiff’s
capabilities of representing himself adequately, which may depend on whether “the
facts and legal issues are so novel or complex as to require the assistance of a
trained practitioner.” Cf. Fowler, 899 F.2d at 1096 (finding no exceptional
circumstances when, among other factors, the plaintiff’s claims were
“straightforward” and based on events he witnessed himself and plaintiff was “an
accomplished writ writer who was capable of representing himself adequately”).
22
This Court has adopted the Ulmer factors. See, e.g., Fowler v. Jones, 899 F.2d 1088,
1096 (11th Cir. 1990) (affirming the denial of counsel where, among other factors, “the
magistrate [judge] . . . indicated that he had properly considered the [Ulmer] factors”).
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Mr. DeJesus argues that his case presented exceptional circumstances that
warranted appointment of counsel. First, he argues that both his claims were
complex because they turned on video evidence and conflicting witness testimony.
Next, he says his incarceration made things challenging because he was housed at
a different facility than the one where the incident took place and was thus did not
have easy access to the witnesses to the incident. Third, Mr. DeJesus relies on his
longstanding mental illness, which was negatively impacted by his having to cross-
examine Sergeant Lewis, the alleged assailant. Finally, Mr. DeJesus argues he did
not have enough time to prepare for trial because his attorney withdrew two
months before trial and failed to provide him with evidence obtained in discovery.
We now address each of the exceptional-circumstances factors.
The first factor—the type and complexity of the case—splits down the
middle. See Ulmer, 691 F.2d at 213. On one hand, although Eighth Amendment
cases may often be factually complicated, this case was based on a discrete event
that occurred while Mr. DeJesus was present. On the other hand, the legal issues
related to the Eighth Amendment elements on which the jury properly should have
been instructed make this case legally complicated.
Three factors tip against Mr. DeJesus. As to the second factor, Mr. DeJesus
showed at trial that he was capable of adequately presenting his case. See id. He
cross-examined the Defendants’ witnesses, introduced documentary evidence into
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the record, and impeached witnesses with those documents. The fourth factor
about conflicting testimony, requiring skill in the presentation of evidence and in
cross-examination, also tips in favor of denying appointed counsel. See id. There
was conflicting testimony in that it was Mr. DeJesus’s word against the
eyewitness-officers’ words, but DeJesus does not argue that a lawyer skilled at
presenting evidence and cross-examination would have obtained better or different
results than he did in impeaching the officers with documentary evidence. Next,
the fifth factor tips against appointing counsel because in this case, it was not
necessary to “sharpen[] the issues in the case, shap[e] the examination of
witnesses,” or “shorten[] the trial and assist[] in a just determination.” Id. The
issues in the case were clear from the parties’ arguments; Mr. DeJesus adequately
examined witnesses; and only one day of trial was needed to examine the seven
witnesses. See id.One factor, however, clearly weighs in favor of appointing counsel. Mr.
DeJesus was not in a position to adequately investigate and prepare for his case.
By the time Mr. DeJesus moved for appointed counsel, his former counsel had
completed several depositions but failed to give them to DeJesus. Mr. DeJesus
was not able to obtain deposition transcripts until the first day of trial, even though
he previously notified the court several times that he was not provided with
discovery. See Smith, 713 F.3d at 1064–65 (holding that prisoner’s inability to
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obtain deposition transcripts, as well as other discovery issues and “suspect
conduct” by the defendants “hindered Smith’s ability” to prepare “the essential
merits of his case” and necessitated the appointment of counsel). Mr. DeJesus’s
lack of familiarity with the discovery materials affected his ability to prepare for
trial, because he was forced to review the deposition transcripts during breaks in
between witness testimony.
Nevertheless, we conclude that the District Court did not abuse its discretion
in denying appointed counsel.
IV. CONCLUSION
For these reasons, we AFFIRM the District Court’s rulings and the order of
final judgment in favor of the Defendants.
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LUCK, Circuit Judge, concurring in the result:
The majority opinion affirms the judgment for Sgt. Willie J. Lewis because:
although the district court erred by giving the unobjected-to pattern jury instruction
for Gilberto DeJesus’s Eighth Amendment excessive force claim, the jury
instruction error was not plain because it didn’t affect the outcome of the trial; and
the district court didn’t abuse its discretion when it denied DeJesus’s motion to
continue the trial and motion for appointment of counsel. I agree that the district
court properly exercised its discretion when it denied the motions to continue and to
appoint counsel. And I agree we should affirm the judgment for Sgt. Lewis. But I
write separately because I don’t think the district court erred in giving the
unobjected-to pattern jury instruction for Eighth Amendment claims. And I don’t
think the majority opinion’s proposed instruction is consistent with our precedent.
The district court did not err in instructing
the jury on DeJesus’s Eighth Amendment claim
DeJesus alleged, and testified, that Sgt. Lewis put his finger in DeJesus’s anus.
Sgt. Lewis and his defense witnesses testified that the incident never happened; that
Sgt. Lewis never put his finger in DeJesus’s anus.
Because there was a factual dispute, the first question the jury had to answer
was whether the incident as alleged by DeJesus actually happened. Before anything
else, the jury had to decide the predicate fact of whether Sgt. Lewis put his finger in
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DeJesus’s anus. If Sgt. Lewis never did that, as he testified, then the verdict would
be for Sgt. Lewis and there would be no need to decide the other issues.
If the jury found that Sgt. Lewis put his finger in DeJesus’s anus, the next
question is whether doing so was constitutionally excessive and violated the Eighth
Amendment’s prohibition on inflicting cruel and unusual punishments. The jury
must make that call because not every finger in an inmate’s anus by a prison official
is constitutionally excessive. The jury has to distinguish “a medical professional
performing an appropriate examination,” Sconiers v. Lockhart, 946 F.3d 1256, 1266
(11th Cir. 2020), from a nurse seeking sexual gratification; “an officer executing a
permissible search,” id., from a prison official trying to humiliate an inmate.
This “core judicial inquiry” for “stating an excessive force claim” requires the
jury to determine whether the digital penetration “was carried out maliciously and
sadistically rather than as part of a good-faith effort to maintain or restore
discipline.” Wilkins v. Gaddy, 559 U.S. 34, 37, 40 (2010) (quotations omitted). The
case law—the Supreme Court’s and ours—has fleshed out the factors to consider in
deciding this core judicial inquiry.
In Wilkins, for example, the Supreme Court said that “the extent of injury
suffered by an inmate is one factor that may suggest whether the use of force could
plausibly have been thought necessary in a particular situation.” Id. at 37 (quotation
and brackets omitted). And, in Sconiers, we explained that “the extent of injury may
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shed light on the amount of force applied or ‘whether the use of force could plausibly
have been thought necessary.’” 946 F.3d at 1266 (quoting Wilkins, 559 U.S. at 37).
In that case, for example, we considered that the prison official “shoved his finger”
in the prisoner’s anus “forcefully.” Id.; see also id. (“[T]his Court has held that
severe or repetitive abuse of a prisoner by a prison official can violate the Eighth
Amendment.” (quotation omitted)).
We also, in Sconiers, considered the prison official’s intent in digitally
penetrating the prisoner’s anus. “[T]o have a valid claim on the merits of excessive
force in violation of the Eighth Amendment,” we explained, “the excessive force
must have been sadistically and maliciously applied for the very purpose of causing
harm.” Id. at 1265 (quotation and brackets omitted).
Finally, in Sconiers, we looked to the prison official’s reason for the digital
penetration and whether it had a “legitimate penological purpose.” Id. at 1266(quotation omitted). “[A] medical professional performing an appropriate
examination or an officer executing a permissible search” is different than a prison
official “forcefully shov[ing] his finger in [the prisoner’s] unclothed anus after [the
official] had already taken [the prisoner] to the ground.” Id.If, after considering these factors, the jury finds that the digital penetration
was constitutionally excessive under the Eighth Amendment, the jury must next find
the extent of the prisoner’s injuries (for purposes of damages) and whether the digital
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penetration caused those injuries. Importantly, the “lack of serious physical injury”
does not defeat an Eighth Amendment excessive force claim. Id. at 1267. The
excessive force claim survives even if the prisoner’s injuries were de minimis.
Wilkins, 559 U.S. at 34 (rejecting dismissal of an excessive force claim “based
entirely” on the district court’s “determination that [the] injuries were ‘de
minimis’”); see also id. at 40 (“[H]olding that the District Court erred in dismissing
Wilkins’ complaint based on the supposedly de minimis nature of his injuries . . .
.”). But “the relatively modest nature of his injuries will no doubt limit the damages
he may recover.” Id. at 40.
Applied here, the district court’s unobjected-to excessive force pattern jury
instruction was consistent with Wilkins and Sconiers. The district court instructed
the jury that, for DeJesus to succeed on his Eighth Amendment excessive force
claim, it first had to find by a preponderance of the evidence that Sgt. Lewis digitally
penetrated DeJesus’s anus. In other words, the jury had to determine whether
DeJesus’s allegations were true and whether the digital penetration actually
occurred.
If the jury found that the digital penetration actually happened, it was
instructed next to find whether the digital penetration was constitutionally
“excessive.” The district court explained that the jury must determine “whether any
force used in this case was excessive” based on the core judicial inquiry: “whether
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the force, if any, was applied in a good-faith effort to maintain or restore discipline,
or instead whether it was applied maliciously or sadistically to cause harm.” “In
making that decision” on the core judicial inquiry, the district court told the jury that
it “should consider” the Wilkins and Sconiers factors.
The jury should consider, the district court instructed, “the amount of force
used in relationship to the need presented; the motive of Sgt. Lewis; the extent of the
injury inflicted; and any effort made to temper the severity of the force used.” And
the jury was instructed to consider the legitimate penological purpose for the digital
penetration—whether Sgt. Lewis “use[d] the reasonable force that is necessary
under the circumstances to maintain order and ensure compliance with jail or prison
regulations.”
After considering the Wilkins and Sconiers factors, the jury was instructed to
find the extent of DeJesus’s injuries (for purposes of damages) and whether the
digital penetration caused his injuries. But the jury was also told that the extent of
DeJesus’s injuries didn’t matter if the digital penetration was excessive (that is, if
Sgt. Lewis “maliciously or sadistically use[d] force to cause harm”). The jury was
to award damages anyway even if DeJesus “submitted no credible evidence of
injury” or his “injuries have no monetary value.”
In sum, the Supreme Court explained in Wilkins that “to prevail” on an
excessive force claim, the prisoner “will ultimately have to prove [1] not only that
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the assault actually occurred, but also [2] that it was carried out maliciously and
sadistically rather than as part of a good-faith effort to maintain or restore
discipline.” Id. at 40 (quotation omitted and numbers added). The district court’s
unobjected-to Eighth Amendment excessive force pattern jury instruction did
exactly what the Supreme Court said in Wilkins. It first asked the jury to find
whether the digital penetration “actually occurred.” And then it asked the jury to
determine the core judicial inquiry. This was not error, plain or otherwise.
The majority opinion’s proposed jury
instruction does not follow Wilkins and Sconiers
The majority opinion affirms the judgment for Sgt. Lewis because any error
in the jury instruction did not affect the outcome of the trial. But, in order “to provide
a definition for sexual assault that can be applied to any set of facts,” Majority Op.
at 20 n.11—including cases well outside the facts of this case and involving different
allegations—the majority opinion offers its own proposed instruction for Eighth
Amendment excessive force cases.
“In order for a prisoner to meet his burden on all elements of his Eighth
Amendment claim,” the majority opinion says, “he need only show that the prison
official committed a sexual assault.” Id. at 19. That means the jury “need not
consider the amount of force applied, the extent of the injury inflicted, or any effort
the official made to temper the severity of the force used.” Id. The majority opinion
then goes on to define “sexual assault,” citing 18 U.S.C. section 2246(2), as “a sexual
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act with [a] prisoner, and that act was for the official’s own sexual gratification, or
for the purpose of humiliating, degrading, or demeaning the prisoner.” Id. at 20.
“At a minimum,” the majority opinion explains, “those sexual acts include
intentional sexualized touching underneath clothing, such as fondling or penetration;
coerced sexual activity; combinations of ongoing harassment and abuse; and
exchanges of sexual activity for special treatment or to avoid discipline.” Id.For five reasons, the majority opinion’s proposed jury instruction is
inconsistent with Wilkins and Sconiers. First, it conflates the threshold factual issue
of whether the prisoner’s allegations actually happened with the separate
constitutional issue of whether the alleged conduct, if true, was excessive. As the
Supreme Court explained in Wilkins, whether “the assault actually occurred” and
whether “it was carried out maliciously and sadistically” are separate and distinct
issues. 559 U.S. at 40 (quotation omitted). “In order to prevail” on his Eighth
Amendment excessive force claim, the prisoner “will ultimately have to prove not
only that the assault actually occurred, but also that it was carried out maliciously
and sadistically rather than as part of a good-faith effort to maintain or restore
discipline.” Id. (emphasis added). Here, for example, Sgt. Lewis and his witnesses
denied that there was ever a finger inside DeJesus’s anus. If the prisoner doesn’t
prove by a preponderance of the evidence that the allegations actually occurred, then
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it’s unnecessary for the jury to decide the harder constitutional question of whether
the prison official’s alleged conduct was excessive under the Eighth Amendment.
The majority opinion’s proposed instruction illustrates this problem. It asks
whether Sgt. Lewis “digitally penetrated DeJesus’s anus for no legitimate
penological or medical purpose but instead for [Sgt.] Lewis’s own personal
gratification or to demean or humiliate DeJesus.” Majority Op. at 25 n.16. But this
collapses the factual question of whether the allegations actually happened with the
constitutional question of whether what happened violated the Eighth Amendment.
For cases, like this one, where the prison officials testify that they never digitally
penetrated the plaintiff, it doesn’t make sense to lump into the same jury question
the purpose of the digital penetration and the intent of the prison officials.
The majority opinion concedes that “it may be helpful” for the jury “to
consider things like . . . whether the alleged sexual assault did in fact occur,” but
only for some cases and not for others. Id. at 21–22 & n.15. But there’s no
misunderstanding: whether the alleged conduct actually occurred is not just a
helpful consideration mixed in with a bunch of other factors. And it is not optional
for a certain slice of cases. As the Supreme Court said, whether the alleged conduct
actually occurred is one of the key facts that the prisoner “will ultimately have to
prove” “[i]n order to prevail” on his excessive force claim. Wilkins, 559 U.S. at 40.
It is not a “helpful” or optional factor for the jury to consider in certain excessive
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force cases; it is part of the ultimate proof that the prisoner must present to the jury
to prevail in any excessive force case.
Second, the majority opinion’s proposed instruction reads out the core judicial
inquiry. It never asks, as Wilkins and Sconiers require the jury to answer, whether
the prison official’s conduct was “a good-faith effort to maintain or restore
discipline” or, instead, was done “maliciously and sadistically to cause harm.”
Sconiers, 946 F.3d at 1265 (quoting Wilkins, 559 U.S. at 37). The majority opinion
says that it “know[s]” the core judicial inquiry and hasn’t read it out, Majority Op.
at 23, but its proposed instruction never uses the words good-faith, malicious,
sadistic, or harm. Not once.
Third, the majority opinion’s proposed instruction disregards some of the key
factors the jury needs to consider in undertaking the core judicial inquiry. While the
proposed instruction asks the jury about the prison official’s intent, the nature of the
allegations, and whether the conduct had a legitimate penological purpose, it doesn’t
tell the jury to consider, among other factors, the amount of force applied and the
extent of the injury inflicted. This is contrary to Sconiers. There, we explained that,
even though a significant injury isn’t a necessary condition for an Eighth
Amendment excessive force claim, “the extent of injury may shed light on the
amount of force applied or ‘whether the use of force could plausibly have been
thought necessary.’” Sconiers, 946 F.3d at 1266 (quoting Wilkins, 559 U.S. at 37).
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The Sconiers court looked to the amount of force the prison official used in
determining whether the force was excessive. See id. (the prison official “force[d]
his finger into [the] inmate’s anus”); id. at 1267 (the prison official “forced his finger
into [the plaintiff]’s anus”). And the Sconiers court discussed the extent of the
prisoner’s injury that resulted from the digital penetration. See id. at 1261 (The
“digital penetration caused him anal pain for two weeks. In particular, [the plaintiff]
complained that as a result of the incident, his anus stung when he had bowel
movements, and he noticed blood on his toilet paper when he used the bathroom.”).
Despite what we said and did in Sconiers, the majority opinion explains that
we don’t need to consider these factors because “when [a] sexual assault occurs it is
necessarily constitutionally excessive in violation of the Eighth Amendment.”
Majority Op. at 25–26. Obviously, “severe or repetitive sexual abuse” of a prisoner
violates the Eighth Amendment. See Sconiers, 946 F.3d at 1266 (quotation omitted).
But this only begs the question: when is a prison official’s conduct a constitutionally
excessive sexual assault? As the majority opinion concedes, not every intentional
touching or digital penetration of a prisoner is a sexual assault. And, because not
every intentional touching or digital penetration is a sexual assault, the question is
what factors must the jury consider in distinguishing “an appropriate examination”
from a malicious one; “a permissible search” from a sadistic one. See id. Wilkins
and Sconiers tell us what those factors are. The way the search and examination
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were done, the amount of force used, and the injury they caused all “shed light” on
“‘whether the use of force could plausibly have been thought necessary.’” Id.
(quoting Wilkins, 559 U.S. at 37).
Fourth, the majority opinion’s proposed instruction defines sexual assault for
“any set of facts,” including for cases that are well beyond the facts of this case. The
proposed instruction says that a “sexual assault” is a “sexual act,” citing to 18 U.S.C.
section 2246(2), which defines “sexual act” for the federal criminal code:
As used in this chapter . . .
(2) the term “sexual act” means—
(A) contact between the penis and the vulva or the penis and the anus,
and for purposes of this subparagraph contact involving the penis
occurs upon penetration, however slight;
(B) contact between the mouth and the penis, the mouth and the vulva,
or the mouth and the anus;
(C) the penetration, however slight, of the anal or genital opening of
another by a hand or finger or by any object, with an intent to abuse,
humiliate, harass, degrade, or arouse or gratify the sexual desire of any
person; or
(D) the intentional touching, not through the clothing, of the genitalia
of another person who has not attained the age of [sixteen] years with
an intent to abuse, humiliate, harass, degrade, or arouse or gratify the
sexual desire of any person . . . .
18 U.S.C. § 2246(2). The proposed instruction also says that, “[a]t a minimum,”
sexual assault includes “intentional sexualized touching underneath clothing,”
“coerced sexual activity,” “combinations of ongoing harassment and abuse,” and
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“exchanges of sexual activity for special treatment or to avoid discipline.” Majority
Op. at 20. But there are a host of problems with defining the scope of an Eighth
Amendment excessive force claim with these examples and section 2246(2):
• To the extent the majority opinion uses section 2246(2) to define an
excessive force claim under the Eighth Amendment, the proposed
instruction turns this criminal statute into a private cause of action.
Essentially, any violation of section 2246(2) would “necessarily”
violate the Eighth Amendment. Majority Op. at 20. But criminal
statutes rarely create private causes of action. See Cent. Bank of
Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164,
190 (1994) (“We have been quite reluctant to infer a private right of
action from a criminal prohibition alone . . . . [W]e[’ve] refused to infer
a private right of action from a bare criminal statute. And we have not
suggested that a private right of action exists for all injuries caused by
violations of criminal prohibitions.” (citation and quotation marks
omitted)); Chrysler Corp. v. Brown, 441 U.S. 281, 316 (1979) (“[T]his
Court has rarely implied a private right of action under a criminal
statute, and where it has done so ‘there was at least a statutory basis for
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inferring that a civil cause of action of some sort lay in favor of
someone.’” (footnote omitted)). 1
• The proposed instruction, by using section 2246(2) and “intentional
sexualized touching” to define sexual assault, would turn consensual
sexual acts with a prisoner into a constitutional violation. While
consensual sexual acts between prisoners and prison officials are never
appropriate, it isn’t clear that they necessarily violate the Eighth
Amendment’s prohibition on the infliction of cruel and unusual
punishments. See, e.g., Brown v. Flowers, 974 F.3d 1178, 1183 (10th
Cir. 2020) (“In Graham, we determined that guards who had sex with
an inmate did not violate her constitutional rights because there was
‘overwhelming evidence of consent.’” (citation omitted)); Freitas v.
Ault, 109 F.3d 1335, 1339 (8th Cir. 1997) (“[W]e hold that . . . welcome
and voluntary sexual interactions, no matter how inappropriate, cannot
as a matter of law constitute ‘pain’ as contemplated by the Eighth
Amendment.”); Fisher v. Goord, 981 F. Supp. 140, 174 (W.D.N.Y.
1
Child victims of sexual assault, as defined in the proposed instruction, may have a private
cause of action under 18 U.S.C. section 2255(a). But the fact that Congress created a private cause
of action for child victims of sexual assault strongly suggests that non-child victims like DeJesus
do not have a private cause of action for section 2246(2) violations. See In re Wild, 994 F.3d 1244,
1260 (11th Cir. 2021) (en banc) (“Congress knows how to give crime victims a private cause of
action when it wants to. Had it intended to do so in the [Crime Victims’ Rights Act], it presumably
would have enacted some provision that resembles [section] 2255. It didn’t even come close, and
its ‘silence’ in that respect ‘is controlling.’” (citation omitted)).
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1997) (“[C]onsensual sexual interactions between a correction officer
and an inmate, although unquestionably inappropriate, and in this
Court’s view despicable, do not constitute cruel and unusual
punishment under the Eighth Amendment.”); see also Wood v.
Beauclair, 692 F.3d 1041, 1048 (9th Cir. 2012) (“While we understand
the reasons behind a per se rule that would make prisoners incapable of
legally consenting to sexual relationships with prison officials, we are
concerned about the implications of removing consent as a defense for
Eighth Amendment claims.”).
• The proposed instruction would turn non-severe or isolated acts, like a
one-time slight touching, into sexual assaults in violation of the Eighth
Amendment. While a one-time slight touching is not appropriate,
Sconiers “held that ‘severe or repetitive sexual abuse of a prisoner by a
prison official can violate the Eighth Amendment.’” 946 F.3d at 1266
(emphasis added) (quoting Boxer X v. Harris, 437 F.3d 1107, 1111
(11th Cir. 2006), abrogated in part by Wilkins, 559 U.S. at 39); id. at
1267 (“Boxer X’s holding that severe or repetitive sexual abuse of a
prisoner by a prison official can violate the Eighth Amendment,
remains good law . . . .”). And in Boxer X, we “join[ed] other circuits
recognizing that severe or repetitive sexual abuse of a prisoner by a
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prison official can violate the Eighth Amendment.” 437 F.3d at 1111
(emphasis added).
• The proposed instruction turns every intentional sexualized touching,
and even non-sexual abuse and harassment, into a sexual assault in
violation of the Cruel and Unusual Punishments Clause without fully
analyzing how the Supreme Court defines the “evolving standards of
decency that mark the progress of a maturing society.” Graham v.
Florida, 560 U.S. 48, 58 (2010) (quotation omitted); see also Hudson v.
McMillian, 503 U.S. 1, 9 (1992) (explaining, in the context of a
prisoner’s excessive force claim, that “the objective component of an
Eighth Amendment claim” is “contextual and responsive to
contemporary standards of decency.” (citation and quotation marks
omitted)). The majority opinion doesn’t “determine whether there is
national consensus,” “as expressed in legislative enactments and state
practice,” criminalizing each subsection of section 2246(2) and each
example that it says are, at minimum, a sexual assault. See Graham,
560 U.S. at 61 (citation omitted). Instead, the majority opinion merely
cites to a part of the Sconiers concurring opinion that was not adopted
by the court. Majority Op. at 18, 20 n.13. And even the unadopted
concurring opinion only said that there was a consensus “that sexual
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abuse of prisoners by prison guards, such as the type [the plaintiff]
alleges, seriously violates ‘contemporary standards of decency.’”
Sconiers, 946 F.3d at 1271 (Rosenbaum, J., concurring). The prison
official in Sconiers forcefully shoved his finger inside the prisoner’s
anus, after taking the prisoner down, for no legitimate penological
reason. Id. at 1266 (majority opinion). That was the type of sexual
abuse alleged by the Sconiers plaintiff that violated contemporary
standards of decency. But the majority opinion’s proposed instruction
defines sexual assault to include consensual touching, non-severe and
non-repetitive touching, and even no-touching-at-all, which are well
beyond the consensus mentioned by the Sconiers concurring opinion.
• As for the majority opinion’s reliance on section 2246(2) as support for
an objective national consensus, the Supreme Court has rejected the
argument that federal law represents a national consensus defining the
limits of the Eighth Amendment. See Graham, 560 U.S. at 62 (rejecting
as “incomplete and unavailing” the argument that there was “no
national consensus against” sentencing juveniles to life without parole
because “[f]ederal law also allows for the possibility of life without
parole for offenders as young as [thirteen]”). And the majority opinion
doesn’t analyze “the standards elaborated by controlling precedents and
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by the Supreme Court’s own understanding and interpretation of the
Eighth Amendment’s text, history, meaning, and purpose” to
“determine in the exercise of its own independent judgment whether”
violating each of section 2246(2)’s four subsections, and each example
it gives of sexual assault, “violates the Constitution.” See id. at 61–62
(quotations omitted).
Fifth and finally, the majority opinion argues that “it is necessary to provide
a definition for sexual assault that can be applied to any set of facts.” Majority Op.
at 20 n.11. But deciding the Eighth Amendment’s scope for all excessive force cases
and “any set of facts,” even for cases and facts that have nothing to do with this case,
is not necessary. See Burns v. Town of Palm Beach, 999 F.3d 1317, 1348 (11th Cir.
2021) (“Generally, we don’t answer constitutional questions that don’t need to be
answered.”). And the majority opinion’s all-encompassing definition is not all-
encompassing. As the majority opinion concedes, the proposed instruction’s
definition of “sexual assault” does not apply to any set of facts because a “broader
range of conduct” outside its definition “certainly qualifies as sexual assault.”
Majority Op. at 21. “[T]his may include conduct that does not require any physical
contact with a prisoner,” id. at 21 n.14, and “[s]ome clothed sexualized touching,”
id. at 20 n.12. The majority opinion doesn’t say what this other conduct is but, it
assures us, jurors will know it when they see it. Id. at 21. Because, as the majority
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USCA11 Case: 18-11649 Date Filed: 09/21/2021 Page: 60 of 60
opinion explains, excessive force claims are uniquely “depend[ent] on the facts of a
given situation,” id., and cannot be so neatly and easily defined, that’s one more
reason why we shouldn’t adopt the proposed instruction. It muddies the waters more
than it clears them up; it confuses more than it clarifies.
* * * *
The majority opinion’s proposed instruction is inconsistent with Wilkins and
Sconiers. It conflates the threshold factual issue of whether the prisoner’s
allegations actually occurred with the separate constitutional issue of whether the
alleged conduct, if true, was excessive. It reads out the core judicial inquiry and
some of the key factors used to decide whether a prison official’s conduct is
constitutionally excessive. And it expands excessive force claims well beyond the
facts of this case and the controlling precedent interpreting the Eighth Amendment.
I wouldn’t adopt it.
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