Andrea Nielsen v. Margaret Burke

In the

United States Court of Appeals

For the Seventh Circuit

____________________

Nos. 23-3060 & 24-1696

ANDREA NIELSEN,

Plaintiff-Appellee/

Cross-Appellant,

v.

TODD SEXTON, et al.,

Defendants-Appellants/

Cross-Appellees.

____________________

Appeals from the United States District Court for the

Central District of Illinois.

No. 3:18-cv-03191-SEM-KLM — Sue E. Myerscough, Judge.

____________________

ARGUED SEPTEMBER 11, 2025 — DECIDED FEBRUARY 26, 2026

____________________

Before EASTERBROOK, HAMILTON, and MALDONADO,

Circuit Judges.

HAMILTON, Circuit Judge. When defendant Richard

MacLeod was a counselor at Logan Correctional Center, an

Illinois women’s prison, he repeatedly sexually assaulted an

inmate in his custody, plaintiff Andrea Nielsen. Prison

investigator Todd Sexton and Warden Margaret Burke

2 Nos. 23-3060 & 24-1696

eventually learned of the assaults by a report from Nielsen’s

cellmate. Instead of protecting Nielsen from further assaults,

Sexton and Burke formulated an outrageous plan to use her

as unwitting “bait” to try to catch MacLeod in the act. The

plan was for Sexton to stay late a few times, crawl around in

the ceiling above the room MacLeod used to sexually assault

Nielsen, and wait to jump down and intervene. The plan

failed, and MacLeod assaulted her again.

Nielsen sued MacLeod, Sexton, and Burke under 42 U.S.C.

§ 1983 for violating her Eighth Amendment right to freedom

from cruel and unusual punishment—MacLeod by assaulting

her, and Sexton and Burke for failing to protect her from

MacLeod. The jury found that all three defendants were liable

and awarded Nielsen a total of $19.3 million in compensatory

and punitive damages.

MacLeod did not defend himself. He was defaulted and

has not appealed. Sexton and Burke defended the case, and

they raise several issues on appeal. On appeal, however, they

do not argue that Nielsen actually consented to any sex with

MacLeod, a concession that takes one potential defense theory

off the table. We affirm the district court’s denial of their

renewed motion for judgment as a matter of law attacking the

sufficiency of the evidence that they acted with deliberate

indifference after receiving a credible report that MacLeod

was sexually assaulting Nielsen. We also affirm the denial of

qualified immunity because no reasonable official could have

thought it proper to act as they did. We also affirm in part the

denial of their Rule 59 motion for a new trial on the basis of

erroneously excluded relevant evidence because that error

was harmless as to liability.

Nos. 23-3060 & 24-1696 3

We must, however, reverse in part on three grounds and

order a new trial on compensatory and punitive damages, but

not liability, against Sexton and Burke. First, the jury lacked

sufficient evidence to find Sexton and Burke liable for actions

taken before learning that MacLeod was sexually abusing

Nielsen. Second, the erroneous exclusion of evidence was not

harmless as to punitive damages. Third, the district court

erred by refusing to require the jury to determine by special

interrogatory when Sexton and Burke acted with deliberate

indifference. The timing is critical for assessing damages

against Sexton and Burke under Nielsen’s two theories of the

case. We also vacate and remand the attorney fee award for

reconsideration in light of the outcome of the new damages

trial.

I. Factual and Procedural Background

To the extent Sexton and Burke appeal the denial of

judgment as a matter of law, we relate the facts in the light

most favorable to the jury’s verdict. Matthews v. Wisconsin

Energy Corp., 642 F.3d 565, 567 (7th Cir. 2011). Facts are based

on the evidence admitted at trial except where otherwise

noted.

A. Logan’s Toxic Culture

In Nielsen’s words, “sexual abuse ran rampant” at Logan

Correctional Center. The data agree with her. Reported rates

of sexual abuse at Logan were the highest in the state among

women’s prisons and the second highest among all Illinois

prisons. Several staff members, not just MacLeod, were

caught sexually abusing inmates around the time of the

events of this case. Some were fired, criminally charged, or

both.

4 Nos. 23-3060 & 24-1696

Yet according to Nielsen, “nothing was ever done” about

it. A third-party investigation in early 2016 agreed. The

investigators reported:

During the assessment, some staff expressed

contempt for the women and

gender-responsive, evidence-based, and

trauma-informed approaches by stating that

they believe the women are worthless, crazy,

talk too much, and will never be anything more

than a convict. In some instances, they refer to

the women inmates as “animals”.

These beliefs contributed to prison staff not taking reports of

sexual abuse seriously. One of Nielsen’s expert witnesses said

the report made it apparent that the prevailing attitude

among staff was that “prisoners lie … if their mouth is

moving.”

B. MacLeod’s Sexual Abuse of Nielsen

MacLeod, a staff member in Logan’s Women and Family

Services Department, became Nielsen’s counselor in August

2016. That meant MacLeod was responsible for facilitating

Nielsen’s phone calls with her six-year-old daughter, a lifeline

to the outside world for which she had spent months securing

a court order and which meant “everything” to her. Because

Nielsen wanted to strengthen her connection with her

daughter, she jumped at the opportunity to take a “Healthy

Relationships” class taught by MacLeod. When Nielsen tried

to sign up, MacLeod made her come, alone, to his office in the

prison’s vocational building—a known “blind spot” at Logan

without security cameras—supposedly for a pre-enrollment

screening. There, he started talking about his own romantic

Nos. 23-3060 & 24-1696 5

relationships and then kissed her, which made her feel

“shocked” and “confused,” and then asked her if she would

tell anyone what he did. “Scared,” “nervous,” and aware that

MacLeod had “power over” her such that she did not “really

have a choice,” she said she would not tell.

MacLeod next summoned Nielsen to his office a few

weeks later, at which point he sexually assaulted her. That

began a months-long pattern of sexual abuse in which

MacLeod would summon Nielsen to his office for her phone

calls with her daughter and subject her to vaginal and oral sex.

When Nielsen “begged” him to wear a condom, he refused.

In Illinois and every other state, prison staff commit a

crime by having sex with an inmate, regardless of whether the

inmate supposedly consents. 720 Ill. Comp. Stat. 5/11-9.2(a) &

(d) (2025); Walton v. Nehls, 135 F.4th 1070, 1075, 1079 (7th Cir.

2025) (collecting statutes).

To coerce Nielsen into not reporting him, MacLeod

threatened her with “a year across the board.” That would

have meant a year of segregation—a solitary cell the inmate

rarely leaves, certainly not for phone calls, and with no family

pictures or personal letters—and then a year back in a regular

cell but with no programming or work, no commissary

privileges, and still no phone calls. MacLeod also told Nielsen

that Sexton was his friend and would “protect him and let him

know if anybody was on his trail.” Nielsen was asked at trial

whether she felt she “could or should” report the assaults. She

said: “There was no doubt in my mind that I couldn’t.”

The sexual abuse finally ended when Nielsen—who was

inexplicably stuck with MacLeod as her counselor even after

switching housing units—convinced another counselor to let

6 Nos. 23-3060 & 24-1696

her take her phone calls with him instead. MacLeod’s last

assault of Nielsen took place in February 2017.

C. The Hicks Report

On December 8, 2016, Nielsen’s cellmate at Logan, whom

we identify by only her surname Hicks, reported the sexual

abuse to Sexton. According to Sexton’s log of the interview,

Hicks told him that Nielsen told her that for the past “couple

months, maybe more,” MacLeod had been having

unprotected vaginal and oral sex with her when she would go

to the vocational building to make her court-ordered phone

calls to her daughter. Hicks said that MacLeod had refused to

use condoms despite Nielsen telling him he “needed” to do

so, claiming that smuggling them into the prison would be

“too risky.” Nielsen had gone the day before (a Wednesday)

in the afternoon, Hicks said, although she did not know what

occurred then. MacLeod also sometimes summoned Nielsen

on Saturdays to “help[] him out,” Hicks reported, although

she did not know what time of day that typically occurred.

The report, which we will call the “Hicks Report,” was

admitted into evidence and much of it read verbatim into the

trial transcript. One line was redacted and withheld from the

jury—that while Nielsen and Hicks were talking in the

shower about MacLeod, Nielsen started the conversation by

saying “I have to get freshened up for my man.” The redaction

of this “freshen up” statement is the focus of much of this

appeal.

D. Sexton and Burke Use Nielsen as “Bait”

Sexton testified at trial that he thought the Hicks Report

was credible because it laid out the motive, means, and

Nos. 23-3060 & 24-1696 7

opportunity for MacLeod to sexually abuse Nielsen. So that

same day he took it to Burke, who agreed with his assessment.

Typically, a report of custodial sexual abuse at Logan

would cause Sexton to separate the inmate and the staff

member by reassigning one or the other to another housing

unit pending an investigation. Sexton himself explained that

the inmate is entitled to receive “immediate protection” even

if the investigation ultimately produces no corroborating

evidence.

But Sexton did not separate MacLeod and Nielsen. Why?

In an offer of proof outside the presence of the jury, Sexton

claimed that he concluded based on the “freshen up”

comment that Nielsen was a “willing” participant in an

“agreed-upon relationship” with MacLeod. Nielsen, he

assumed, would tip off MacLeod if she became aware that

Sexton was looking into things, and he would never get the

evidence he needed for a criminal conviction. So, Sexton

testified, he changed his usual tactics. The jury did not hear

this testimony. The jury also did not hear excerpts from

Sexton’s deposition where he offered a different basis for this

belief about Nielsen’s supposed consent, said he in fact did

not know one way or the other, and all but admitted that his

supposed belief was a “rationalization” to make himself not

“feel bad.”

The jury did hear what Sexton did instead. He began by

interviewing potential witnesses, but not Nielsen or

MacLeod. Nor did he directly ask any witnesses about

MacLeod, instead leaving his questions open-ended. These

interviews yielded no “usable information” about MacLeod.

Apparently, Sexton instead directed his questioning

elsewhere; he was really looking into Hicks. Shortly after

8 Nos. 23-3060 & 24-1696

receiving the Hicks Report, he testified, he changed his mind

about Hicks’ credibility because he was told she was giving

information to gain a transfer to another housing unit.

Sexton finally spoke to Nielsen two weeks after the Hicks

Report. In that conversation, he also did not use MacLeod’s

name. He asked her only if she had “any problems with any

staff members or any issues you want to talk to me about.”

Recall that MacLeod had already warned Nielsen that Sexton

would protect him and had threatened her with two years of

harsh discipline if she told anything to anyone. Nielsen told

Sexton that there was nothing going on.

Having failed to corroborate the Hicks Report through his

interviews, Sexton turned to another strategy for gathering

evidence: he formulated a plan to use Nielsen as unwitting

“bait.” Sexton stayed late at the vocational building on three

random Wednesdays in December 2016 and January 2017,

hoping to catch MacLeod in the act of attempting to sexually

assault Nielsen. If that had happened, he testified, he would

have jumped in to intervene. Literally. On the first occasion,

he was hiding in the drop ceiling above the room. Burke

approved the plan.

The plan, of course, relied on MacLeod attempting to

sexually assault Nielsen again, and doing so on Sexton’s

schedule. Sexton and Burke knew that MacLeod had

“continuing and ongoing access” to Nielsen, could “easily”

assault her again, and could do so whenever he wanted,

practically 24/7. Either Sexton or Burke could have acted on

their own authority to prevent further assaults by separating

Nielsen and MacLeod. They chose not to, apparently because

it would have foiled their plan to use her as “bait.” The plan

Nos. 23-3060 & 24-1696 9

did not work, in any case. Sexton had given up the effort by

February, when MacLeod sexually assaulted Nielsen again.

E. Aftermath

MacLeod’s crimes came to light in August 2017 after

another correctional officer reported to Sexton that MacLeod

had been sexually harassing her for months. The officer said

that at one point MacLeod told her, “I am a stalker. I will find

out where you live. I may already know.” That same day,

Sexton spoke to Nielsen again, this time conducting a

structured interview and specifically using MacLeod’s name.

As soon as he did so, Sexton testified, he could tell from

Nielsen’s body language that something had been going on.

She soon told him about the abuse. Sexton had her belongings

packed up and later that day drove Nielsen from Logan to

another prison. A few days later, he emailed a former

colleague about Nielsen: “Yeah I will have to tell you about

the inmate I just took to Decatur Friday dealing with a certain

counselor haha it’s a good one.” Sexton referred Nielsen’s

report for a criminal investigation that led to a referral to the

county State’s Attorney, but MacLeod was never charged

with a crime.

Nielsen testified to the emotional harms she suffered at

Logan while subjected to MacLeod’s sexual abuse, including

feeling “hopeless” and “helpless,” “like nothing.” She

described her confusion over whether to report MacLeod,

what would happen if she did, and her fear from lacking “any

control over anything that happens to you.” At the time of

trial in 2023, well after her release from prison, Nielsen was

still experiencing the lasting effects of MacLeod’s sexual

abuse, including panic attacks, nightmares, flashbacks, and

trouble sleeping, all of which interfered with her ability to

10 Nos. 23-3060 & 24-1696

work. A psychiatric expert, Dr. Ann Burgess, testified that

Nielsen had suffered a “significant and serious injury”

characterized by “severe” trauma.

F. This Civil Lawsuit

In 2018, Nielsen filed this suit under Section 1983 against

MacLeod, Sexton, Burke, and other then-unidentified

defendants alleging violations of her Eighth Amendment

right to freedom from cruel and unusual punishment and her

First Amendment right to freedom from retaliation

(regarding the transfer to Decatur). MacLeod defaulted. After

discovery, Nielsen amended her complaint to name over

twenty other officials as additional defendants. 1

The district court granted summary judgment for all

defendants on the First Amendment claim and granted

summary judgment for the added defendants on Nielsen’s

Eighth Amendment claim. The court denied summary

judgment on the Eighth Amendment claims against Sexton

and Burke on the merits and on qualified immunity.

The district court also wrote in the order on summary

judgment that any potential defense that Nielsen supposedly

consented, or that Sexton and Burke believed she consented,

failed as a matter of law because “prisoners cannot consent to

sex with prison staff under any circumstances” given the

obvious “power disparity,” citing this court’s decision in J.K.J.

v. Polk County, 960 F.3d 367, 381–82 (7th Cir. 2020) (en banc).

1 The district court had originally granted Nielsen’s unopposed

motion to proceed under the pseudonym “Jane Doe,” but she used her

real name in the public trial. Her attorney agreed at oral argument that we

should use her real name in this appeal. See generally Doe v. Trustees of

Indiana University, 101 F.4th 485, 491 (7th Cir. 2024).

Nos. 23-3060 & 24-1696 11

Accordingly, the district court granted Nielsen’s motion in

limine to exclude any evidence of her supposed consent,

especially the “freshen up” comment.

Nielsen proceeded to trial against Sexton, Burke, and

MacLeod. Since MacLeod had defaulted, the case against him

was on damages only. The jury heard a series of factual

stipulations as to MacLeod (since he had defaulted),

including, essentially, that MacLeod had sexually assaulted

Nielsen in the manner she described. The district court

instructed the jury that these facts were not stipulated as to

Sexton and Burke. The district court denied Sexton and

Burke’s motion for judgment as a matter of law under Rule

50(a) at the close of Nielsen’s case-in-chief and again at the

close of all evidence.

To hold Sexton and Burke liable on her Eighth

Amendment failure-to-protect claim, Nielsen had to show

that she suffered serious harm from MacLeod’s abuse and

that Sexton and Burke contributed to causing that harm by

acting with deliberate indifference, meaning they were aware

of a substantial risk of serious harm and failed to take

reasonable measures to prevent it. See Dale v. Poston, 548 F.3d

563, 569 (7th Cir. 2008); Seventh Circuit Pattern Civil Jury

Instructions § 7.16 (2025).

Nielsen advanced two distinct theories of deliberate

indifference at trial. The first was based on Sexton and Burke’s

actions in “creating and failing to remedy general conditions

conducive to staff-on-prisoner abuse” that existed well before

August 2016, when MacLeod began assaulting Nielsen.

Appellee’s Br. at 24 (emphasis added). The second was that

Sexton and Burke, after receiving the Hicks Report in

December 2016, used Nielsen “as rape ‘bait’ rather than

12 Nos. 23-3060 & 24-1696

removing her from harm’s way.” The district court denied

Sexton and Burke’s motion to require the jury to determine

when they became liable (if it found liability) and the amount

of Nielsen’s damages caused by Sexton and Burke’s conduct

occurring after that time, which presents an issue we address

below.

The jury returned a general verdict, finding both Sexton

and Burke liable, fixing Nielsen’s compensatory damages at

$8 million, and awarding her $800,000 in punitive damages

against Sexton, $500,000 in punitive damages against Burke,

and $10 million in punitive damages against MacLeod.

The district court entered judgment accordingly. Then it

denied Sexton and Burke’s renewed motion for judgment as

a matter of law under Rule 50(b) or a new trial under Rule 59.

The district court later awarded Nielsen costs and over $2

million in attorney fees, around half of what she requested.

Sexton and Burke appealed the denial of their post-judgment

motions, and Nielsen cross-appealed certain downward

adjustments to the fee award. We consolidated the appeals

and later requested supplemental briefing on the effect of a

decision of another panel of this court dealing with an

indisputably consensual sexual relationship between an

inmate and a prison nurse, Walton v. Nehls, 135 F.4th 1070 (7th

Cir. 2025).

In Section II, we address Sexton and Burke’s challenges to

the sufficiency of the evidence against them. We conclude that

the evidence supported the verdict under Nielsen’s specific

theory of liability but not her general conditions theory. In

Section III, we reject Sexton and Burke’s claim of qualified

immunity on the specific theory of liability. In Section IV, we

conclude that the district court erred by excluding evidence

Nos. 23-3060 & 24-1696 13

of the “freshen up” comment, which was relevant to Sexton’s

state of mind. That evidence was relevant to both liability and

punitive damages against Sexton and Burke, but the exclusion

was prejudicial only as to punitive damages. Finally, in Part

V we conclude that the district court erred by refusing to

require the jury to determine by special verdict which of

Nielsen’s theories of liability it accepted because that question

was critical for determining damages against Sexton and

Burke. The bottom line is that a new trial is necessary on

damages alone.

II. Judgment as a Matter of Law on Deliberate Indifference

Sexton and Burke first challenge the sufficiency of the

evidence that they acted unreasonably both in failing to

address Logan’s toxic culture and after learning through the

Hicks Report of what they call in their brief a “possible

relationship” between Nielsen and MacLeod. Because they

moved for judgment as a matter of law under Rule 50(a) and

(b) in the district court, we consider de novo whether “a

reasonable jury would have ‘a legally sufficient evidentiary

basis to find for’” Nielsen, construing the evidence “strictly”

in her favor. Empress Casino Joliet Corp. v. Balmoral Racing Club,

Inc., 831 F.3d 815, 822 (7th Cir. 2016), quoting first Fed. R. Civ.

P. 50(a)(1), and then Passananti v. Cook County, 689 F.3d 655,

659 (7th Cir. 2012). 2

2 We return to the excluded evidence in Part III, where we evaluate

Sexton and Burke’s arguments for qualified immunity. See Danenberger v.

Johnson, 821 F.2d 361, 363 (7th Cir. 1987) (noting Rule 59(e) can be proper

vehicle for considering qualified immunity).

14 Nos. 23-3060 & 24-1696

A. Nielsen’s Burden of Proof

The district court instructed the jury that Nielsen needed

to prove four elements to establish her Eighth Amendment

failure-to-protect claim:

1. There was a strong likelihood that Plaintiff

would be seriously harmed as the result of an

assault or assaults.

2. The Defendant under consideration was

aware that Defendant MacLeod would

seriously harm a prisoner in Plaintiff’s situation

or strongly suspected that Plaintiff would be

seriously harmed but refused to confirm

whether these facts were true. You may infer

this from the fact that the risk was obvious.

3. The Defendant under consideration

consciously failed to take reasonable measures

to prevent the assault or assaults.

In deciding this, you may consider how serious

the potential harm to Plaintiff was and how

difficult it would have been for the Defendant

under consideration to take corrective action.

4. Plaintiff would not have been harmed, or

would have suffered less harm, if the defendant

under consideration had taken reasonable

measures.

This instruction was consistent with Seventh Circuit Pattern

Civil Jury Instructions § 7.16 (2025), and with Ortiz v. Jordan,

562 U.S. 180, 190–91 (2011), and Farmer v. Brennan, 511 U.S.

825, 832–33, 837, 842 (1994).

Nos. 23-3060 & 24-1696 15

The first element was essentially uncontested, given

Nielsen’s unrebutted testimony about her injuries. The

second and third elements set forth the deliberate indifference

standard. The actual knowledge element requires that “the

official must both be aware of facts from which the inference

could be drawn that a substantial risk of serious harm exists,

and he must also draw the inference.” Farmer, 511 U.S. at 837.

The adequacy of the official’s response is evaluated “in light

of the surrounding circumstances,” particularly the official’s

knowledge of the threat at the time he acted or could have

acted, not whether the threat actually materializes. Dale v.

Poston, 548 F.3d 563, 569 (7th Cir. 2008). The fourth element,

causation, is evaluated in line with ordinary tort principles

and requires both factual and proximate causation. Whitlock

v. Brueggemann, 682 F.3d 567, 582–83 (7th Cir. 2012). With

these standards in mind, we turn to the evidence.

B. Sexton and Burke’s Actual Knowledge of the Hicks Report

We address Nielsen’s specific theory of liability first. As

Nielsen points out, Sexton and Burke appear to concede the

actual knowledge element here. They argue in this section of

their brief only that a reasonable jury could not have found

that they acted unreasonably. The parties, however,

characterize the content of this knowledge quite differently:

Nielsen as Sexton and Burke knowing sexual abuse

“occurred,” and Sexton and Burke as their knowing of only

“a possible relationship.” Appellee’s Br. at 25; Appellants’ Br.

at 28. The difference matters. The jury had a sufficient basis to

find that both Sexton and Burke were actually aware of a

strong likelihood that MacLeod was in fact sexually abusing

Nielsen, coercing her into sex in an unmonitored location

16 Nos. 23-3060 & 24-1696

practically any time he wished by controlling Nielsen’s access

to her daughter and by threatening retaliatory punishment.

1. Sexton

The critical evidence of Sexton’s actual knowledge is the

Hicks Report and Sexton’s own testimony about it. Sexton

personally interviewed Hicks on December 8, 2016, prepared

the report, and signed each page. Some of what he had written

was read to the jury, including that the abuse had been going

on for a “couple of months, maybe more,” that it had occurred

when Nielsen made her phone calls to her daughter, that

MacLeod was not using condoms, and that they were

engaging in vaginal and oral sex.

Sexton testified that he thought the Hicks Report was

credible because “MacLeod had the means, motive, and the

opportunity to [sexually] abuse” Nielsen repeatedly. Sexton

further conceded he knew that MacLeod “refused” after

Nielsen “begged” him to use a condom, putting Nielsen at

risk of pregnancy and sexually transmitted disease. He also

conceded he knew MacLeod had “continuing and ongoing

access” to Nielsen and could “easily” sexually abuse her

again. Sexton also conceded he knew MacLeod could sexually

abuse Nielsen whenever he wanted, “day or night,”

practically 24/7 other than at count times. In fact, Sexton

conceded that Hicks told him that MacLeod had summoned

Nielsen the night before her report.

Sexton also conceded he knew that the vocational building

was a “potential hot spot” for sexual abuse because of the lack

of cameras and spotty staffing outside the regular hours of

Monday to Friday, 7 am to 3 pm. Sexton further conceded he

Nos. 23-3060 & 24-1696 17

knew this situation created “significant safety issues,”

namely, the risk of staff-on-inmate sexual abuse.

Sexton also conceded he knew MacLeod had “significant

power and control” over all inmates at Logan, that is, the

power to “make inmates do what he wanted” or else “face

punishment.” Sexton conceded as well that he knew MacLeod

had particular levers to use against inmates with families,

including access to programming and even for some, like

Nielsen, access to their children. Finally, Sexton conceded that

he knew these factors made Nielsen especially vulnerable to

sexual abuse:

Q. Can you understand how a female prisoner,

someone who relied on Defendant MacLeod to

call her child, would have no ability, would feel

afraid to fight him off in this scenario? Do you

get that?

A. Yes.

This evidence was sufficient to establish that Sexton knew of

at least a strong likelihood that MacLeod was coercing

Nielsen into sex, not just that there was a “possible

relationship.”

2. Burke

Defendant Burke testified that she was “made aware that

a third party had reported stuff was happening” to Nielsen.

When pressed, she said she was aware of more details:

Q. Stuff?

A. Sorry, I will say sexual assault.

18 Nos. 23-3060 & 24-1696

Q. Sexual assault, that’s right. It’s hard to say;

isn’t it?

A. It is, mm-hmm.

Burke also conceded that she thought there might be “validity

to the allegations.” In fact, Sexton testified that he read the

Hicks Report out loud to Burke in its entirety and offered her

his conclusions, including that the abuse “could easily

happen again.” Burke also conceded, like Sexton, that she

knew the vocational building was a “blind spot.” And she

conceded she knew MacLeod could summon an inmate there

without supervision by other staff members, cameras, or even

documentation of the inmate’s movement. Finally, Burke, like

Sexton, conceded she knew that sexual abuse threatened

inmates’ (and everyone’s) safety.

Burke’s own testimony was sufficient to establish her

actual knowledge, not just of a “possible relationship,” but of

a strong likelihood that MacLeod was coercing Nielsen into

sex.

C. Sexton and Burke’s “Bait” Plan

The jury also had a sufficient basis to find that Sexton and

Burke each acted unreasonably after receiving the Hicks

Report. In particular, their plan to use Nielsen as unwitting

“bait” left her vulnerable to further sexual assaults by

MacLeod. It also forwent other potential avenues of gathering

evidence.

1. Expert Testimony on Prison Rape

The jury heard expert testimony from Dr. Brenda Smith, a

law professor and member of the National Prison Rape

Elimination Commission, which was created by the Prison

Nos. 23-3060 & 24-1696 19

Rape Elimination Act of 2003 and tasked with developing “a

set of standards that deal with the prevention, detection,

punishment, [and] investigation of sexual victimization in

custodial settings.” Congress enacted a special law for

prisons, Dr. Smith explained, because of the high prevalence

of custodial rape and the “huge power differential between

prisoners and staff,” prison being “a closed environment”

where staff “control everything that goes on” while an inmate

“control[s] nothing.” Among the purposes of the Act, Dr.

Smith told the jury, was to make clear that “there is no

acceptable amount of sexual victimization in custody,” as

“zero tolerance means zero.” Dr. Smith explained that the Act

and its implementing regulations apply to both state and

federal facilities. See 34 U.S.C. §§ 30307(e)(2), 30309(7); 28

C.F.R. § 115.5 (2025).

The jury heard excerpts from a training document under

the Act outlining steps for prison officials to take when they

receive any reports of custodial sexual abuse:

Staff shall report and respond to allegations of

sexual abuse regardless of the source of the

report; for example, third party.

If observed, verbally reported, or through

written report, all allegations are handled the

same and taken seriously.

One, separate; two, offer protection; three, treat

area as a crime scene; four, report to the shift

supervisor; and five, document.

Dr. Smith elaborated that “separate” means “separate the

person from the offender” to “prevent additional harm,” that

“offer protection” means to assure the possible victim that she

20 Nos. 23-3060 & 24-1696

or he is “not going to be harmed anymore,” and that to “treat

the area as a crime scene” means to gather evidence from the

place the abuse occurred and from the victim.

Asked what exactly Sexton should have done after he took

the Hicks Report, Dr. Smith answered in line with those steps,

including that he should have “taken [Nielsen] out for a rape

kit.” Asked if she agreed that Sexton “did exactly what he was

supposed to do,” she answered, “I do not.” 3

3 In reviewing Dr. Smith’s testimony, we are not equating the Act’s

requirements with the constitutional standard for an Eighth Amendment

failure-to-protect claim of custodial sexual abuse. Federal and state

statutes, regulations, and departmental policies do not set constitutional

standards, but parties in constitutional cases may present evidence on

such matters, including expert testimony, where relevant to establishing

standards of care (or the use of force) on matters outside the ordinary

knowledge of a layperson. See Seventh Circuit Pattern Civil Jury

Instructions § 7.04 (2025); J.K.J. v. Polk County, 960 F.3d 367, 379, 384 (7th

Cir. 2020) (en banc) (custodial sexual abuse claim against municipality:

affirming jury verdict and noting jury could have credited expert

testimony in finding that county’s “policy deficiency affirmatively

deterred the reporting and detection of sexual abuse of female inmates”);

United States v. Brown, 871 F.3d 532, 534, 536–38 (7th Cir. 2017) (criminal

prosecution for excessive force in violation of Fourth Amendment:

“Expert testimony … may be relevant in cases where specialized

knowledge of law-enforcement custom or training would assist the jury

in understanding the facts or resolving the contested issue.”). Other courts

have endorsed similar evidence and reasoning. E.g., Pearson v. Prison

Health Service, 850 F.3d 526, 536 (3d Cir. 2017) (Eighth Amendment

medical care claim: “[M]edical expert testimony may be necessary”—not

just permissible—“to establish deliberate indifference in an adequacy of

care claim where, as laymen, the jury would not be in a position to

determine that the particular treatment or diagnosis fell below a

professional standard of care.”); Cook ex rel. Estate of Tessier v. Sheriff of

Monroe County, 402 F.3d 1092, 1111–12, 1115 (11th Cir. 2005) (Fourteenth

Amendment claim for pretrial detainee’s suicide: affirming exclusion of

Nos. 23-3060 & 24-1696 21

Dr. Smith also testified to the unreasonableness of what

Sexton and Burke did without relying on the Act’s standards.

First, she explained that briefly questioning Nielsen in general

terms was inadequate because it was not “an investigation

tactic designed to elicit information.” Next, she explained that

trying to catch a perpetrator in the act is not an “appropriate

approach” because it “creates the conditions for the victim to

be revictimized” and “sort of treats the victim as … a bad

person, a malefactor.” Nor, in Dr. Smith’s view, was Sexton

staying late “a few times” a reasonable way of implementing

his plan:

Q. And in your experience, is that an

appropriate response to this kind of report?

A. You know, it is a tactic, but it was not

effective combined with anything else. Was

there a plan? Was there any other information

that you thought you were going to gain by just

staying late to see what would happen?

2. Sexton and Burke’s Testimony

Sexton and Burke each testified to several factors the jury

was entitled to consider in evaluating the reasonableness of

their actions. We review that testimony here.

Sexton conceded that after a report of custodial rape, the

reported victim and offender typically would be separated

expert testimony partly because expert failed to testify to “any generally

accepted standard of care for dealing with suicidal inmates”); Kopf v.

Skyrm, 993 F.2d 374, 378–79 (4th Cir. 1993) (Fourth Amendment excessive

force claim: reversing jury verdict for defendants because district court

erroneously excluded expert testimony on proper use of police canines

and “slapjacks”).

22 Nos. 23-3060 & 24-1696

because the victim is entitled to “immediate protection” even

in a “he-said, she-said” situation. This did not happen for

Nielsen. Sexton conceded he had the authority to move

Nielsen away from MacLeod to another housing unit

“immediately.” Burke also conceded that she could have

prevented further unsupervised meetings between MacLeod

and Nielsen without needing “any further resources” but did

not do so. In other words, Sexton and Burke each had the

power to protect Nielsen. They both chose not to.

Sexton conceded that his December 2016 interview of

Nielsen, which took place (he estimated) two weeks after the

Hicks Report, consisted of only “broad questions” asking if

she had “problems with any staff members.” Sexton conceded

that when he finally conducted the type of interview

contemplated by the Act and Dr. Smith’s testimony, with

more pointed questions, Nielsen told him about MacLeod.

Sexton conceded that instead of separating Nielsen from

MacLeod and conducting a controlled interview of Nielsen,

he developed a plan to catch MacLeod in the act of sexually

abusing her, using Nielsen as unwitting “bait.” Originally the

plan was to “crawl around in the ceiling and see if [he] could

peek through the vents to catch [MacLeod] in the act,” though

he quickly switched to other methods, namely standing

outside the office and watching through the windows. Sexton

claimed that if the plan had worked, he would have

intervened before the sexual assault could occur. He

estimated he did three of these “stakeouts.” Sexton then

offered a defense of his tactics:

Q. … One of your three unsuccessful,

completely undocumented, ludicrous attempts

to catch a sexual predator in the act of calling a

Nos. 23-3060 & 24-1696 23

helpless person he had control over to him at

night, and your plan was to jump out of the

bushes and stop him from committing another

rape of my client? I’m just trying to understand

what’s happening here.

A. I’m trying to build a criminal case against a

staff member.

Sexton testified that Burke approved the plan. Burke

conceded the same. She testified that she “did my best” but

also implied she would have done things differently if given

another chance:

Q. Leaving Ms. Nielsen such that she could be

commanded to visit Defendant MacLeod at any

time between December of 2016 and August of

2017, was doing their best to protect her?

A. Hindsight is 20/20.

3. Analysis

Sexton and Burke argue that because Sexton “did not

ignore the risk of harm to [Nielsen], but instead sought to

substantiate Hicks’s allegations,” no reasonable jury could

find that he acted with deliberate indifference. We assume the

argument extends to Burke as well, since she ratified Sexton’s

plan. They cite our case law to the effect that “[m]ere

negligence or even gross negligence does not constitute

deliberate indifference,” and that “the mere failure of the

prison official to choose the best course of action does not

amount to a constitutional violation.” See Snipes v. DeTella, 95

F.3d 586, 590 (7th Cir. 1996); Peate v. McCann, 294 F.3d 879, 882

(7th Cir. 2002).

24 Nos. 23-3060 & 24-1696

Where a prison official has actual knowledge of a

substantial risk of serious harm to an inmate, the plaintiff

must prove the official “disregard[ed] that risk by failing to

take reasonable measures to abate it.” Farmer, 511 U.S. at 847;

accord, e.g., Hunter v. Mueske, 73 F.4th 561, 566 (7th Cir. 2023)

(“measures reasonably calculated to address the risk”); Gevas

v. McLaughlin, 798 F.3d 475, 480 (7th Cir. 2015) (“adequate

response to the threat”). On a Rule 50 motion for judgment as

a matter of law, the issue is whether a reasonable jury could

find that the defendants’ actions were unreasonable.

This inquiry should avoid the distortions of hindsight and

must give “due regard for prison officials’ ‘unenviable task of

keeping dangerous men’”—and dangerous women, and non-

dangerous men and women, and in juvenile prisons,

children—“‘in safe custody under humane conditions.’”

Farmer, 511 U.S. at 844–45, quoting Spain v. Procunier, 600 F.2d

189, 193 (9th Cir. 1979) (Kennedy, J.); see also Bell v. Wolfish,

441 U.S. 520, 547 (1979) (“[T]he problems that arise in the day-

to-day operation of a corrections facility are not susceptible of

easy solutions.”). Nielsen did not “have a constitutional right

to ‘the most intelligent, progressive, humane, or efficacious

prison administration.’” Hunter, 73 F.4th at 567, quoting

Anderson v. Romero, 72 F.3d 518, 524 (7th Cir. 1995).

Nielsen did, however, have the right not to be used

unwittingly as bait for a sexual predator. A reasonable jury

could have concluded that Sexton and Burke acted

unreasonably in three ways based on what they failed to do:

(1) Failed to move Nielsen to another housing

unit in line with standard protocol, thereby

allowing MacLeod to continue summoning her

Nos. 23-3060 & 24-1696 25

to a private, unmonitored location to assault her

whenever he wished.

(2) Failed to interview Nielsen in a timely and

structured manner designed to elicit useful

information to substantiate or refute the

allegation, instead waiting a full two weeks

after the Hicks Report to speak with her and

even then asking her only in general terms if she

had anything to report.

(3) Failed to order immediately a rape kit on

Nielsen and to treat the vocational building as a

crime scene, leading to the loss of potential

evidence against MacLeod, which Sexton

claimed he needed to gather.

In addition to the evidence of these failings, a reasonable jury

could have concluded that what Sexton and Burke actually

did was unreasonable. Staying late on three random

Wednesdays and hiding in the ceiling to catch MacLeod in the

act was both unlikely to work and likely to revictimize

Nielsen if it did.

Sexton and Burke’s argument to the contrary is that the

investigatory steps Sexton took show they did not ignore the

risk of harm to Nielsen but instead tried to substantiate Hicks’

allegations. But Nielsen did not need to show that Sexton and

Burke completely ignored the risk to her. The Eighth

Amendment standard requires not merely some response,

but a reasonable one. For example, we have held that a jury

could find a prison official acted unreasonably in telling an

inmate that he could obtain a new cell assignment to get away

from a threatening cellmate by committing a disciplinary

26 Nos. 23-3060 & 24-1696

infraction with a punishment of thirty days of segregation.

Gevas, 798 F.3d at 478–79, 482–83 (reversing judgment as a

matter of law for defendants). Nor is standing back from an

ongoing assault and telling a detainee to “learn how to fight

harder or don’t come to jail” a reasonable course of action. See

Grieveson v. Anderson, 538 F.3d 763, 778–79 (7th Cir. 2008)

(reversing summary judgment for defendants). Likewise for

investigating and substantiating a transgender inmate’s

repeated complaints of rape and sexual harassment by staff

and fellow inmates without taking any steps to prevent future

attacks. See Tay v. Dennison, 457 F. Supp. 3d 657, 671–72, 685–

87 (S.D. Ill. 2020) (granting preliminary injunction). We reject

Sexton and Burke’s sufficiency challenges as to Nielsen’s

specific theory of liability.

D. Nielsen’s General Conditions Theory of Liability

By contrast, we sustain Sexton and Burke’s sufficiency

challenge as to Nielsen’s general conditions theory of liability.

Sexton and Burke each conceded they had actual knowledge

of Logan’s toxic culture. Sexton admitted to knowing that

“sexual misconduct was rampant” and that multiple staff

members had been “charged or convicted or fired or

resigned” after sexually abusing inmates. Burke, for her part,

admitted to knowing that Logan had a “major cultural

problem,” with reports of staff-on-inmate abuse “increasing.”

We assume without deciding that these concessions are

enough to establish Sexton and Burke’s actual knowledge of

a substantial risk of serious harm to Nielsen and many other

inmates at Logan. However, Nielsen did not offer sufficient

evidence for a jury to find that Sexton took unreasonable

actions that caused her injuries between August and

Nos. 23-3060 & 24-1696 27

December 2016 or that Burke acted unreasonably during that

time.

1. Sexton

To show Sexton acted unreasonably, Nielsen points to his

concessions that “[n]obody was doing anything about the

toxic, sexually-charged, and disgusting culture at Logan,

including [him],” that he was “part of the toxic culture,” that

he did not always follow the Prison Rape Elimination Act to

the letter even before the Hicks Report, and that it was his

standard practice never to substantiate “he-said, she-said”

allegations without further evidence. Assuming (without

deciding) that these statements are enough to establish Sexton

acted unreasonably, Nielsen still did not establish causation,

which is an essential element of her claim. Whitlock, 682 F.3d

at 582–83; Seventh Circuit Pattern Civil Jury Instructions

§ 7.16 (2025).

The closest Nielsen comes is testimony from another

inmate at Logan, referred to at trial as Jane Doe No. 1, that

MacLeod also sexually abused her and two others much as he

later abused Nielsen. But Jane Doe No. 1 never reported

MacLeod to Sexton, and Nielsen identifies no other basis for

Sexton to have zeroed in on MacLeod before December 2016.

So even if Sexton had challenged Logan’s toxic culture or

adequately investigated other staff members, concluding that

these steps would have caused MacLeod not to abuse Nielsen

between August and December 2016 would call for

conjecture. See Lapre v. City of Chicago, 911 F.3d 424, 435 (7th

Cir. 2018) (affirming summary judgment for defendant in jail

suicide case in part because plaintiff “has presented little

more than speculation in support of causation”).

28 Nos. 23-3060 & 24-1696

2. Burke

To show Burke acted unreasonably, Nielsen points to her

concessions that she failed to remedy Logan’s blind spots,

including the vocational building, despite having the

resources necessary to do so, and that she allowed counselors

to meet with inmates one-on-one.

The second contention is easily dismissed. We decline to

hold that failing to prohibit any and all one-on-one meetings

between adult inmates and staff members about whom the

warden has no particular reason to harbor suspicions is so

unreasonable as to violate the Eighth Amendment. Such

policies may be sensible in some contexts, but the Eighth

Amendment “does not require the most intelligent,

progressive, humane, or efficacious prison administration.”

Anderson, 72 F.3d at 524; see also McKenzie v. U.S. Tennis Ass’n,

No. 22-cv-615, 2024 WL 3849884, at *6 (M.D. Fla. Aug. 16,

2024) (noting “rule of three” prohibiting one-on-one coaching

in a private setting in youth sports).

Burke’s failure to remedy Logan’s blind spots is a closer

call. Early in her tenure as warden, Burke and her

subordinates mapped out the prison’s existing cameras and

locations where additional cameras would be appropriate,

and she requested and received funding for the project. After

the cameras arrived, she met weekly with the prison’s chief

engineer for status updates on ongoing facilities and

maintenance projects, including camera installation. But

“every week” the engineer “would have an explanation” for

why no progress had been made on the camera project,

primarily that his electrician was working on something else.

Logan had no other electricians available, and Burke could

not install them herself, so the project stalled. As it turned out,

Nos. 23-3060 & 24-1696 29

the electrician was intentionally slow-walking the camera

project because he, too, was taking advantage of Logan’s

blind spots to sexually abuse inmates. 4

During trial, jurors asked several questions about the

camera project and the electrician. They specifically asked

Burke if she kept “requesting cameras be installed after [the]

first initial delay.” She testified that she had. True, Burke

conceded immediately after that exchange that it was “my job

to ensure those things were done” to protect inmates, and that

on her watch as warden, “those cameras never went up.”

Still, we cannot judge the reasonableness of her efforts

solely by the fact that they were ultimately unsuccessful. Dale,

548 F.3d at 569. Burke identified the problem, secured

resources to remedy it, and periodically followed up with her

subordinates about it. The subordinate responsible made sure

installation did not happen so he could further his own

criminal purposes. Even as warden, Burke may be held liable

under Section 1983 only for her own actions, not those of

others. See Hunter, 73 F.4th at 566–67 (concluding that

correctional officer acted reasonably in helping inmate fill out

complaints since he did not know his supervisor would

ignore them). Nielsen did not introduce evidence from which

a reasonable jury could have concluded that Burke herself

acted unreasonably with respect to the camera project. Thus,

4 He was discovered, fired, and criminally prosecuted after concerns

about the delay prompted an investigation. The trial record is sparse on

details about the timing of these events, but Sexton testified that the

electrician was “involved in installing cameras” for the “entire time”

Sexton worked at Logan. The electrician was not charged until well after

December 2016.

30 Nos. 23-3060 & 24-1696

a reasonable jury could not have found that either Sexton or

Burke was liable under Nielsen’s general conditions theory.

III. Denial of Qualified Immunity

We next address Sexton and Burke’s argument that they

are entitled to qualified immunity as a matter of law on

Nielsen’s specific theory of liability. We address this defense

separately from the sufficiency of the trial evidence because

their defense relies on evidence the district court excluded at

trial. 5

The availability of a qualified immunity defense is often a

question of law that we review de novo. Smith v. Finkley, 10

F.4th 725, 734 (7th Cir. 2021). Even so, after a jury trial, “we

are bound by the jury’s resolution of disputed factual issues.”

Frazell v. Flanigan, 102 F.3d 877, 886 (7th Cir. 1996), abrogated

on other grounds as recognized by McNair v. Coffey, 279 F.3d

463, 464–65 (7th Cir. 2002). Since the Supreme Court’s

decision in Saucier v. Katz, 533 U.S. 194, 200 (2001), abrogated

5 The Supreme Court has written that when Section 1983 defendants

“continue to urge qualified immunity” even after a full trial on the merits,

“the decisive question, ordinarily, is whether the evidence favoring the

party seeking relief is legally sufficient to overcome the defense.” Ortiz v.

Jordan, 562 U.S. 180, 184 (2011) (emphasis added). Because Sexton and

Burke’s qualified immunity arguments rely on evidence that the district

court did not admit at trial—specifically, Sexton’s offer of proof, including

the “freshen up” comment—this is the rare case where Rule 50(b) may not

be the proper vehicle for considering qualified immunity after trial. A Rule

50(b) motion “must be determined on the basis of the evidence the trial

judge admitted and the jury considered.” LNC Investments, Inc. v. First

Fidelity Bank, 126 F. Supp. 2d 778, 785 (S.D.N.Y. 2001); see also 9B Wright

& Miller, Federal Practice and Procedure § 2529 (3d ed. 2025). If a defendant

seeks relief after trial based on evidence excluded from trial, Rule 59 offers

a better path.

Nos. 23-3060 & 24-1696 31

on other grounds by Pearson v. Callahan, 555 U.S. 223, 236

(2009), that deference does not extend to the ultimate finding

of reasonableness. Rather, deference is given only to the

“disputed ‘foundational’ or ‘historical’ facts that underlie” the

qualified immunity determination, Acosta v. City & County of

San Francisco, 83 F.3d 1143, 1147 (9th Cir. 1996), or in other

words, “the who-what-when-where-why,” Cottrell v. Caldwell,

85 F.3d 1480, 1488 (11th Cir. 1996). See McNair, 279 F.3d at 466

(“We assume that the jury resolved all factual disputes in the

McNairs’ favor. Juries are not authorized, however, to

determine the substance of the Constitution.”).

The who, what, when, and where of this case, outside of

Sexton’s and Burke’s minds, are not materially disputed on

appeal. Sexton and Burke no longer contend that Nielsen

might actually have consented to sex with MacLeod. See

Appellants’ Br. at 40–42; Appellants’ Supp. Br. at 6. The

parties disagree primarily on the why—whether Sexton and

Burke acted as they did because they thought Nielsen was a

“willing” participant in an “agreed-upon relationship” with

MacLeod—and whether that why matters. The why is a

disputed foundational or historical fact, but we cannot infer

what the jury found about the why because the district court

barred Sexton from testifying about it.

Our decision in Walton v. Nehls, 135 F.4th 1070 (7th Cir.

2025), addressed wholly voluntary sex between an inmate

and a prison staff member. Walton shows there can be cases

where evidence of an inmate’s genuine consent may be

relevant in evaluating an official’s response. After reviewing

the excluded evidence, however, we conclude that the why

does not matter in this case for qualified immunity purposes.

Sexton and Burke’s actions would have been unreasonable as

32 Nos. 23-3060 & 24-1696

a matter of law even if they thought that Nielsen was a willing

participant in MacLeod’s sexual abuse.

A. Clearly Established Duties of Prison Officials

At all times relevant to this case, the law was clearly

established that “a prison official may be held liable under the

Eighth Amendment for denying humane conditions of

confinement only if he knows that inmates face a substantial

risk of serious harm and disregards that risk by failing to take

reasonable measures to abate it.” Farmer v. Brennan, 511 U.S.

825, 847 (1994). It was also clearly established that the use of

force is not required: “An unwanted touching of a person’s

private parts, intended to humiliate the victim or gratify the

assailant’s sexual desires, can violate a prisoner’s

constitutional rights whether or not the ‘force’ exerted by the

assailant is significant.” Washington v. Hively, 695 F.3d 641, 643

(7th Cir. 2012). And it was clearly established that the same

standard applies in sexual abuse cases, whether the threat

comes from other inmates or, as in this case, from prison staff.

See Farmer, 511 U.S. at 830 (assault by another inmate); Ortiz

v. Jordan, 562 U.S. 180, 190 (2011) (case alleging failure to

protect from prison guard: “[T]he pre-existing law was not in

controversy.”).

B. Walton and Wholly Voluntary Sex Between Inmates and

Staff

Sexton and Burke rely on Walton, where we addressed an

Eighth Amendment claim for custodial sexual abuse on an

unusual factual record. The plaintiff in Walton had a

“romantic and sexual relationship” with a prison nurse and

“testified in his deposition that the relationship was

consensual.” 135 F.4th at 1071–72. In fact, the plaintiff had

Nos. 23-3060 & 24-1696 33

“always described the relationship” in such terms. Id. at 1072.

Though recognizing the “inherently coercive prison

environment,” the “inherently vulnerable position of

prisoners,” and that “unwanted sexual conduct, regardless of

whether it involves force, is objectively harmful under the

Eighth Amendment,” we declined in Walton to adopt a “per se

nonconsent rule.” Id. at 1073–79. Such a rule, we said, would

“run counter to” Supreme Court case law by “broadly and

indeed categorically expanding Eighth Amendment liability

in one fell swoop—without regard to the unique factual

circumstances that could arise in future cases.” Id. at 1075. We

also declined to adopt a presumption of nonconsent because

the evidence there overcame any such presumption. We

concluded that “we cannot on this record say that [the

defendant] knew of and was deliberately indifferent to an

excessive risk that her conduct would seriously harm

[plaintiff].” Id. at 1079. Thus, Walton’s holding was a narrow

one: wholly voluntary sexual conduct between an inmate and

staff member is not “sufficiently serious” or “objectively

harmful” enough to violate the Eighth Amendment. See id. at

1072. 6

6 No federal court of appeals has recognized an Eighth Amendment

cause of action for a wholly voluntary sexual relationship between an

inmate and a staff member, though some district courts have done so. E.g.,

Carrigan v. Davis, 70 F. Supp. 2d 448, 453, 459–61 (D. Del. 1999); Chao v.

Ballista, 806 F. Supp. 2d 358, 381–83 (D. Mass. 2011). We appear to have

first raised the possibility of a consent defense to Section 1983 claims for

custodial sexual abuse in J.K.J. v. Polk County, where we wrote of the officer

who committed the custodial rapes:

[The perpetrator’s] only defense was to try somehow to

persuade the jury that J.K.J. and M.J.J. consented to the

sexual relations. The effort failed …. If the jury had

34 Nos. 23-3060 & 24-1696

Walton did not hold, however, that a prison official

charged with investigating custodial sexual abuse may act as

if the relationship is wholly voluntary until proven otherwise.

Walton did not hold that a prison official who actually draws

the inference of a substantial risk of coercive sexual conduct

may avoid liability because she also suspects that it might be

non-coercive—in other words, when she is not sure one way

or the other. In summary, Walton does not affect a prison

official’s duty to respond to a report of sexual conduct that the

official recognizes contains both indicia of voluntariness and

indicia of coercion.

C. Excluded Evidence

Because we must consider the excluded evidence in

evaluating Sexton and Burke’s claim of qualified immunity,

see Fox v. Hayes, 600 F.3d 819, 836–37 (7th Cir. 2010), we

review that evidence here. Sexton and Burke repeatedly refer

to (mostly unspecified) “evidence of consent.” The choice of

words is misplaced. They do not contend that the excluded

evidence showed that Nielsen actually consented to sex with

MacLeod. Rather, they focus their challenge on whether they

believed she had consented. The theory is that this evidence

“went to their subjective knowledge and would have allowed

them to explain why they conducted the investigation in the

way that they did.” Appellants’ Br. at 40–41. Accordingly, the

bought [his] story that J.K.J. and M.J.J. were willing

participants (and, for that matter, even capable of being

willing participants under the circumstances), it would

have found that the women had not met their evidentiary

burdens of proving that he acted with deliberate

indifference to their safety and well-being.

960 F.3d 367, 376 (7th Cir. 2020) (en banc).

Nos. 23-3060 & 24-1696 35

only evidence of Nielsen’s supposed consent that could be

relevant to their qualified immunity defense are facts that

Sexton and Burke knew before February 2017, as well as

testimony about their respective states of mind during that

time. So the only additional documentary evidence we

consider is the “freshen up” comment because it came to their

attention in December 2016. We do not consider any

documents related to any later investigation.7

Sexton testified in his offer of proof that he believed

Nielsen was a “willing” participant in an “agreed-upon

relationship” with MacLeod. Dr. Smith (the expert on

preventing prison rape) testified in a counteroffer of proof

about portions of Sexton’s deposition testimony relevant to

7 At trial, Sexton and Burke also made an offer of proof with evidence

from an Illinois State Police investigation of MacLeod conducted many

months later, in August 2017. An investigator interviewed Nielsen and

ultimately concluded that MacLeod had committed custodial sexual

misconduct. The case was forwarded to county prosecutors, but they

chose not to pursue criminal charges. The defendants in this civil case

wanted to offer several statements Nielsen made to the investigator that

might have offered some support for an argument that Nielsen

“consented” to the sex with MacLeod. Nielsen told the investigator that

MacLeod did not use force and she did not physically resist him. The

district court excluded that evidence because of the court’s view that

consent could not be a defense here. On appeal, as noted, Sexton and

Burke have dropped any claim that Nielsen voluntarily consented to sex

with MacLeod. Appellants’ Br. at 40–42; Appellants’ Supp. Br. at 6. As a

result, any information that Sexton and Burke did not know at the time of

the events relevant here could not have supported their theory that they

honestly believed Nielsen might have consented to voluntary sex with

MacLeod. The evidence from the Illinois State Police investigation

therefore is not relevant to the issues on appeal.

36 Nos. 23-3060 & 24-1696

his alleged belief. Burke did not present a separate offer of

proof.

In Sexton’s offer of proof, he testified that his belief about

Nielsen’s willingness was the reason he decided to interview

other potential witnesses before he spoke with Nielsen.

Sexton also testified that his supposed belief informed his

approach when he eventually did talk to Nielsen. He said he

did not “want to show all my cards because [Nielsen and

MacLeod] could go about ways of hiding it.” Sexton also

testified that his alleged belief informed the level of danger he

thought Nielsen faced, as “if it’s an agreed-upon relationship,

she’s engaging in something [she] wants to do.” He testified

more broadly that his alleged belief informed the way he

conducted his investigation as a whole.

Yet Sexton also acknowledged important facts that

undermined his theory of consent. He conceded that the

Hicks Report gave him enough information to conclude that

“if she’s relying on Mr. MacLeod to call her daughter”—as

she in fact had to, and as the Hicks Report told him—that

power would make her “more vulnerable” to sexual abuse.

Sexton also faced scrutiny on the reasons for and sincerity

of his alleged belief. At trial, he testified at least twice that the

“freshen up” comment was the sole basis on which he

concluded that Nielsen “wanted it.” To impeach Sexton on

this point, Nielsen introduced testimony from his deposition

in which he: (1) gave a different basis for his alleged belief,

namely that Nielsen did not disclose the sexual abuse to him

when he spoke to her in December 2016; (2) admitted he

actually did not know at the time if Nielsen “wanted” sex

with MacLeod or not; and (3) all but conceded that his alleged

Nos. 23-3060 & 24-1696 37

belief was likely a “rationalization” to help himself not “feel

bad”:

Q. Did you feel responsible that you were

unable to protect Ms. Nielsen between

December 2016 and August 2017?

A. Not necessarily because I asked her. I gave

her the opportunity to tell me in December of

’16. And if she didn’t want to tell me, then my

thoughts are, this was something she wanted to

take place. But she can’t give consent; I get that.

But I guess maybe that’s my rationalization

behind that.

Q. Okay. Because Ms. Nielsen didn’t disclose to

you herself affirmatively in December of 2016,

you believed maybe she wanted the sexual

contact from Mr. MacLeod; is that what you’re

saying?

A. I don’t know if she did or not. I was just

telling you I just -- I try not to feel bad about the

continuation of the sexual misconduct.

D. Analysis

The question for qualified immunity is whether it was

reasonable for Sexton and Burke to believe between

December 2016 and February 2017 that their plan was a

reasonable response to what they knew. Gevas v. McLaughlin,

798 F.3d 475, 484 (7th Cir. 2015) (noting defendants’ qualified

immunity argument was “premised on the notion that it was

reasonable for them to believe that Gevas’ ability to refuse

housing was a sufficient response to the danger even if, as we

have concluded, it was not”); see also Anderson v. Creighton,

38 Nos. 23-3060 & 24-1696

483 U.S. 635, 641 (1987) (“The relevant question … is the

objective (albeit fact-specific) question whether a reasonable

officer could have believed [the federal agent’s] warrantless

search to be lawful ….”).

In considering the offer of proof, we are not required to

credit Sexton’s testimony as true. There is no doubt that

Sexton and Burke were aware of ample facts signaling

MacLeod was coercing Nielsen into sex, as we explained

above. Walton requires that we consider the “freshen up”

comment and Sexton’s explanations for his actions. The jury’s

verdict, however, also requires that we view the offer of proof

as a whole—not just the portions favorable to Sexton and

Burke—and in light of the whole record.

The excluded evidence changes nothing with respect to

qualified immunity. Even if we were prepared to accept that

Sexton concluded from the “freshen up” comment that

Nielsen in some relevant way consented to sex with

MacLeod—and we are not—qualified immunity still would

not apply.

To overcome qualified immunity, Nielsen must be able to

“show either a reasonably analogous case that has both

articulated the right at issue and applied it to a factual

circumstance similar to the one at hand”—before December

2016, when Sexton and Burke learned of the Hicks Report—

“or that the violation was so obvious that a reasonable person

necessarily would have recognized it as a violation of the

law.” Leiser v. Kloth, 933 F.3d 696, 701–02 (7th Cir. 2019),

quoting Howell v. Smith, 853 F.3d 892, 897 (7th Cir. 2017). On

the first prong, an analogous case need not be “on all fours”

with our facts, but Nielsen would need to identify “some

settled authority that would have shown a reasonable officer”

Nos. 23-3060 & 24-1696 39

in Sexton and Burke’s position that their actions were

unconstitutional. Id. at 702, quoting Howell, 853 F.3d at 897,

and citing Mullenix v. Luna, 577 U.S. 7, 11–12 (2015). Farmer

and Ortiz may not be enough themselves because “the

dispositive question is whether the violative nature of

particular conduct is clearly established,” not merely the right

“as a broad general proposition.” Mullenix, 577 U.S. at 12

(cleaned up), quoting first Ashcroft v. al-Kidd, 563 U.S. 731, 742

(2011), and then Brosseau v. Haugen, 543 U.S. 194, 198 (2004).

Alternatively, Nielsen could establish that Sexton and

Burke’s conduct was “so outrageous that no reasonable

correctional officer would have believed the conduct was

legal.” Leiser, 933 F.3d at 704. We applied that exception in

Gevas, reasoning that telling an inmate to escape a threatening

cellmate by committing a disciplinary violation (refusing his

cell assignment) “runs counter to the essential nature of

incarceration” and is “at odds with the respective duties that

existing case law imposed on prisoner and prison official.”

798 F.3d at 485. The Supreme Court has applied that approach

to tying a prisoner to a hitching post in the Alabama sun for

hours without water or bathroom breaks, Hope v. Pelzer, 536

U.S. 730 (2002), and to leaving a prisoner for several days in a

“shockingly unsanitary” cell covered “nearly floor to ceiling”

with feces. Taylor v. Riojas, 592 U.S. 7 (2020).

Other circuits have also applied that approach both inside

and outside prison. See Gilmore v. Georgia Dep’t of Corrections,

144 F.4th 1246, 1263–64 (11th Cir. 2025) (en banc) (reversing

qualified immunity; correctional officers subjected regular

prison visitor to surprise mandatory strip search without

offering option to leave premises); Jones v. Hunt, 410 F.3d 1221,

1224–25, 1230–31 (10th Cir. 2005) (reversing qualified

40 Nos. 23-3060 & 24-1696

immunity; social worker threatened teenage girl with arrest

and imprisonment for refusing to live with father in “direct

contravention” of temporary restraining order prohibiting

contact); Tyson v. County of Sabine, 42 F.4th 508, 520 (5th Cir.

2022) (rejecting qualified immunity; sheriff’s deputy used

welfare check as pretense to force woman to “strip [to] her

privates, to manually manipulate her genitals, and to remain

exposed while he masturbated”).

Nielsen relies on this obvious-violation approach. The

Eleventh Circuit’s decision in Hill v. Cundiff, 797 F.3d 948 (11th

Cir. 2015), is helpful here. It was a case with facts disturbingly

similar to those we face here. In Hill, the court rejected a

qualified immunity defense for a public school teacher’s aide

and assistant principal who “contrived” and “ratified,”

respectively, a plan to use a 14-year-old girl as “bait in a sting

operation” to catch a male classmate in the act of sexual

harassment. Id. at 955–56, 961, 979–80. The teacher’s aide had

pressured the girl to participate in the scheme after the boy

kept badgering her for sex but never faced punishment. The

teacher’s aide did so because official school policy—which the

court noted was “glaring[ly] inadequa[te]”—was not to

substantiate allegations without a student being caught in the

act, physical evidence, or a confession. Id. at 957–58, 978. But

the “sting operation” went awry. The boy forcibly raped the

girl while the teacher’s aide waited outside the wrong

bathroom. Id. at 962–63. The Eleventh Circuit wrote, in a terse

understatement, that it was “not surprising the district court

could not find similar case law.” Id. at 979.

We are equally unsurprised here. Using a prison inmate as

unwitting bait to catch a staff member in the act of sexually

abusing her is obviously an outrageous response. No

Nos. 23-3060 & 24-1696 41

reasonable prison official could have considered it acceptable.

It is so outrageous that we would not expect to find much case

law dealing with similar facts. And if that were not bad

enough, Sexton carried out this plan so poorly, and then

abandoned it, that he allowed at least one further sexual

assault by MacLeod. He and Burke also left Nielsen

vulnerable and fearful of further assaults for months.

Compared to advising an inmate to protect himself by

committing a disciplinary violation, as in Gevas, intentionally

using an inmate as unwitting bait for a sexual predator “runs

counter to the essential nature of incarceration” and is “at

odds with” both a prison official’s duty to protect inmates and

an inmate’s own obligations. 798 F.3d at 485.

For starters, willingly engaging in any sexual conduct

exposes an inmate to discipline. We have allowed the Illinois

Department of Corrections to punish an inmate who

embraced and kissed his girlfriend and fondled her buttocks

during a visit with a thirty-day prohibition on receiving

visitors and an eighteen-month prohibition on receiving the

girlfriend in particular, delaying the couple’s plans to marry.

Martin v. Snyder, 329 F.3d 919, 920–22 (7th Cir. 2003) (granting

qualified immunity); see also 20 Ill. Admin. Code § 504 app.

A, para. 107 (2025) (prohibiting “[e]ngaging in sexual

intercourse, sexual conduct or gesturing, fondling or touching

done to sexually arouse, intimidate or harass either or both

persons”); id. tbl. A (punishable by six months’ segregation, C

grade, loss of privileges and/or sentence credit revocation). So

Sexton and Burke’s plan relied on Nielsen committing, or at

least attempting to commit, acts for which she could have

faced punishment similar to that which MacLeod threatened

her with if she reported him.

42 Nos. 23-3060 & 24-1696

Second, under this court’s precedent, an inmate lacks a

constitutional right to use force in self-defense, even to defend

herself against a violent rape. Rowe v. DeBruyn, 17 F.3d 1047,

1052–53 (7th Cir. 1994); see also Scruggs v. Jordan, 485 F.3d 934,

937, 939 (7th Cir. 2017) (re-affirming and extending Rowe to

defense of others). So an inmate could be subject to

administrative discipline if at any point, including when she

is alone with the perpetrator, she tries to fight off the attack.

See 20 Ill. Admin. Code § 504 app. A, para. 102b (2025)

(prohibiting “[c]ausing a person, substance, or object to come

into contact with a staff member … in an offensive or

provocative manner; or fighting with a weapon”). MacLeod

knew the power this rule gave him. In fact, he threatened to

concoct a story about Jane Doe No. 1 attacking him if she ever

told anyone about the sexual abuse.

Third, we have repeatedly held that an inmate must follow

oral and written orders from staff. See Gevas, 798 F.3d at 485,

citing first Forbes v. Trigg, 976 F.2d 308, 313–14 (7th Cir. 1992)

(to submit to urine tests), then Redding v. Fairman, 717 F.2d

1105, 1115–16 (7th Cir. 1983) (to accept housing assignments),

and then Smith v. Roal, 494 F. App’x 663, 664–65 (7th Cir. 2012)

(non-precedential decision) (to submit to handcuffing). At

Logan, that means inmates are subject to discipline if they

refuse to go wherever a staff member summons them,

whether or not staff uses the official call-pass system. See 20

Ill. Admin. Code § 504 app. A, para. 307 (2025) (prohibiting

“[b]eing anywhere without authorization or being absent

from where required to be”).

To put it all together, circuit and state law allows inmates

to be disciplined for refusing to go where a staff member tells

them, to be disciplined for physically resisting a staff

Nos. 23-3060 & 24-1696 43

member’s attempt to rape them, and to be disciplined for

willingly engaging in any sexual activity with a staff member.

The Constitution, under our decisions, thus left Nielsen

subject to prison discipline, including further loss of her

liberty, if she had tried to defend herself against MacLeod’s

sexual assaults. Rowe, 17 F.3d at 1052–53. 8

Under Rowe, Nielsen had no lawful recourse because she

was held in a state prison. No lawful recourse, that is, except

protection by prison officials like Sexton and Burke charged

by the State of Illinois (through its laws) and by Congress

(through the Prison Rape Elimination Act) with preventing

such crimes. The Constitution does not—and we have no

difficulty characterizing our conclusion as obvious—allow

those officials instead to choose deliberately to leave

vulnerable prisoners at the mercy of abusive prison staff.

Sexton and Burke did just that. They are not entitled to

qualified immunity.

IV. New Trial Based on Excluded Evidence

Sexton and Burke next contend that they are entitled to a

new trial because the district court erred by excluding

Sexton’s offer of proof as irrelevant to liability and

compensatory and punitive damages.

8 We have since recognized a statutory right to self-defense for federal

inmates against unconstitutional uses of force by prison staff in part

because a contrary holding “would prevent inmates from protecting

themselves from sadistic and malicious acts,” including “cases of sexual

abuse,” a result that “harmonize[s]” the federal criminal prohibition on

assaulting prison guards with Eighth Amendment protections. United

States v. Waldman, 835 F.3d 751, 755–56 (7th Cir. 2016); see 18 U.S.C. § 111.

44 Nos. 23-3060 & 24-1696

“We review a district court’s evidentiary ruling for abuse

of discretion,” Maurer v. Speedway, LLC, 774 F.3d 1132, 1135

(7th Cir. 2014), but an “evidentiary ruling that rests on a legal

error is, by definition, an abuse of discretion.” Burton v. E.I. du

Pont de Nemours & Co., 994 F.3d 791, 812 (7th Cir. 2021). “And,

even in the face of error, we will not reverse a judgment

entered on a jury verdict unless the erroneous ruling violated

the objecting party’s substantial rights,” meaning “a

significant chance must exist that the ruling affected the

outcome of trial.” Maurer, 774 F.3d at 1135, quoting Smith v.

Hunt, 707 F.3d 803, 808 (7th Cir. 2013).

We consider separately the relevance and then the effects

of the excluded evidence, first as to liability and then to

compensatory damages and punitive damages. We conclude

that the excluded evidence was relevant only as to liability

and punitive damages and that the erroneous exclusion was

prejudicial only as to punitive damages.

A. The District Court’s Rulings

The district court made two key evidentiary rulings.

Before trial, Nielsen moved in limine to exclude as irrelevant

and unfairly prejudicial “any evidence or argument

suggesting Plaintiff consented to the custodial rape and

assaults she suffered.” The district court granted the motion

without explanation. 9

9 Nielsen also objected to admitting the “freshen up” comment on

hearsay grounds, and she repeats that objection in her brief on appeal. The

district court did not address the hearsay objection; we reject it. The

“freshen up” comment as reported by Hicks to Sexton was not admissible

to prove Nielsen consented or even that she ever said the words to Hicks.

But it was admissible for a purpose other than its truth, that is, to show

the information available to Sexton when he acted or failed to act. See, e.g.,

Nos. 23-3060 & 24-1696 45

The district court explained its reasons when it denied

Sexton and Burke’s Rule 59 motion, which sought a new trial

on the ground that the excluded evidence was relevant to both

the objective and subjective elements of the Eighth

Amendment standard, causation, and damages. 10

Carter v. Douma, 796 F.3d 726, 736 (7th Cir. 2015) (“When the reasons for

the police’s actions are relevant, a witness can testify about what

information prompted those actions.”). Like many failure-to-protect cases,

this case hinges on what Sexton and Burke knew and when they knew it.

The relevance of their states of mind makes this unlike the ordinary

criminal case, where out-of-court statements offered to explain the “course

of investigation” “can easily violate [the Confrontation Clause], are easily

misused, and are usually no more than minimally relevant.” Jones v.

Basinger, 635 F.3d 1030, 1046 (7th Cir. 2011) (granting habeas relief); see

also United States v. Silva, 380 F.3d 1018, 1020 (7th Cir. 2004) (vacating

conviction on this basis).

10 We do not address the objective element of Nielsen’s Eighth

Amendment claim or causation here. As previously noted, on appeal,

Sexton and Burke rely on the excluded evidence only to show their

subjective understanding of the situation at the time, not to show that

Nielsen consented to sex with MacLeod.

Nielsen also argues on appeal, as she did in the district court, that the

excluded evidence was also inadmissible under Rule 403. The district

court, after concluding that the evidence was not relevant in any respect,

also said it was unfairly prejudicial. Given the relevance of Sexton and

Burke’s state of mind at least as to punitive damages, we reject that basis

for exclusion. A properly instructed jury would, we presume, understand

the difference between what Sexton and Burke thought was happening

and what was actually happening. See Doe ex rel. G.S. v. Johnson, 52 F.3d

1448, 1458 (7th Cir. 1995). Moreover, Nielsen was able to cross-examine

Sexton on the matter and to testify herself.

46 Nos. 23-3060 & 24-1696

B. Relevance Under Rule 401

“Evidence is relevant if: (a) it has any tendency to make a

fact more or less probable than it would be without the

evidence; and (b) the fact is of consequence in determining the

action.” Fed. R. Evid. 401. Relevant evidence is admissible at

trial unless otherwise provided in the Federal Rules of

Evidence or some other source of law. Fed. R. Evid. 402.

Relevance is a “low threshold,” and “even testimony that has

‘only minimal relevance’ satisfies Rule 401.” United States v.

Harden, 893 F.3d 434, 451 (7th Cir. 2018), quoting first Tennard

v. Dretke, 542 U.S. 274, 285 (2004), and then United States v.

Boros, 668 F.3d 901, 907 (7th Cir. 2012).

C. Liability

As we explained above, Walton teaches that if Sexton and

Burke thought Nielsen was in a wholly voluntary sexual

relationship, and if they did not draw the inference of a

substantial risk that she was being coerced into sex, they

could not be held liable. The district court explained the

exclusion in its order denying their Rule 59 motion. That

explanation was well-reasoned given the state of circuit law

before Walton. In light of Walton, however, the district court’s

reasoning was legally erroneous and thus must be deemed an

abuse of discretion, as Walton forecloses the district court’s

analysis that “[a]ny belief that Defendant Sexton held that

[Nielsen] was consenting to the sexual encounters with

MacLeod is negated by his understanding that [Nielsen] could

not consent to Macleod.”

If the jury had heard Sexton’s testimony that he thought

Nielsen was a “willing” participant in an “agreed-upon

relationship” with MacLeod, and if it interpreted this

Nos. 23-3060 & 24-1696 47

testimony as him saying that he believed Nielsen was in a

wholly voluntary sexual relationship, and if the jury believed

that claim, Walton means that Sexton could not be held liable.

Nielsen correctly points out that Sexton’s offer of proof

addresses only his state of mind, not Burke’s. Still, a jury

could reasonably infer from her approving Sexton’s plan that

she concurred in his supposed belief, and Nielsen’s case

against Burke is based on her approval of Sexton’s plan. The

offer of proof was relevant to both Sexton’s and Burke’s

liability, so that evidence should not have been excluded.

Before granting a new trial on liability, however, we must

also consider whether the error was likely prejudicial or

harmless. Maurer, 774 F.3d at 1135. Once again, the procedural

posture of this case is critical here. Because we must predict

how the jury would have ruled if the district court had

allowed the excluded evidence, we must consider Sexton’s

offer of proof in its entirety, not just the portions Sexton and

Burke prefer.

Our review leaves us satisfied that it is “unlikely that a

juror would have been persuaded to change his vote on the

basis of the excluded testimony.” Henry v. Wyeth

Pharmaceuticals, Inc., 616 F.3d 134, 151 (2d Cir. 2010). First,

Sexton testified in the offer of proof that he knew Nielsen was

a particularly “vulnerable” inmate because she relied on

MacLeod for access to her daughter. He also testified outside

the offer of proof that he knew that MacLeod had “refused”

when Nielsen “begged” him to use a condom. Those

concessions undermine any theory that Sexton thought

Nielsen was in a voluntary sexual relationship with MacLeod.

That alone is enough to distinguish Walton, where the

relationship indisputably—based on that plaintiff’s own

48 Nos. 23-3060 & 24-1696

testimony—lacked “any coercive factors” aside from the fact

that the plaintiff was in prison. Walton, 135 F.4th at 1072.

More important, Sexton’s offer-of-proof testimony as to

his alleged belief was impeached by his prior inconsistent

testimony. As noted, Sexton at his deposition: (1) gave a

different basis for his alleged belief, namely that Nielsen did

not disclose the sexual abuse to him when he spoke to her in

December 2016; (2) admitted he actually did not know at the

time if Nielsen “wanted” the sexual abuse or not; and (3) all

but conceded that his alleged belief was likely a

“rationalization” to help himself not “feel bad.” 11

11 Sexton and Burke tried to rebut this impeachment with an excerpt

from the same deposition where Sexton, after reviewing the Hicks Report,

testified as follows:

Q. All right. And what about that document refreshed

your recollection?

A. I didn’t realize that she had given such detailed

things in that [document] when I first took that statement.

What I remembered was that I thought she had said she

was going to go see her boyfriend, but apparently, she

gave me more information than that initial statement.

We see nothing in this statement or any other portion of Sexton’s

deposition available in the trial transcript to establish that Sexton testified

at his deposition that Nielsen allegedly calling MacLeod her “man” (or

“boyfriend” as Sexton recalled it) was the reason he thought Nielsen

“wanted it.” Defense counsel made that leap when asking the district

court to let them cross-examine Dr. Smith on this point, but they cited no

additional lines to support the inference. We are skeptical of this post-hoc

characterization. Dr. Smith testified that inmates at Logan often used the

term “boyfriend” to refer to male staff members without meaning to

suggest a romantic relationship, and the district court thought it was

Nos. 23-3060 & 24-1696 49

What’s more, the jury would have been able to consider

Sexton’s prior inconsistent statement not only as

impeachment but also for the truth of the matter asserted and

could have done so against both Sexton and Burke. See Fed.

R. Evid. 801(d)(1)(A) (declarant-witness); United States v.

Cooper, 767 F.3d 721, 728 (7th Cir. 2014). So the jury would

have weighed Sexton’s testimony in the offer of proof with his

prior inconsistent statement made three years closer to the

events in question, and his admissions at trial about the

coercive factors he knew were present, not to mention his

flippant comment to a former coworker about Nielsen’s

situation once she told him about the abuse (“haha it’s a good

one”). Under these circumstances, Sexton’s self-serving

testimony that he believed Nielsen was in a “wanted

relationship” would not have had a “significant chance” of

convincing the jury that he was not actually aware of at least

a significant risk that MacLeod was coercing Nielsen into sex.

See Maurer, 774 F.3d at 1135, quoting Smith, 707 F.3d at 808.

The district court’s error in excluding this evidence was

harmless as to liability.

D. Compensatory Damages

Sexton and Burke do not adequately explain why their

alleged beliefs were relevant to the amount of compensatory

damages. The excluded testimony in fact was not relevant to

compensatory damages because Sexton’s beliefs have no

bearing on the harm Nielsen suffered.

“certainly ambiguous” whether the “she” referred to Nielsen or Hicks in

the first place, given the surrounding testimony.

50 Nos. 23-3060 & 24-1696

E. Punitive Damages

We come to a different answer, however, as to punitive

damages. The offer of proof was relevant to punitive damages

against both Sexton and Burke. Rule 401 applies to evidence

relevant to punitive damages in the same manner as evidence

relevant to liability. See E.E.O.C. v. Indiana Bell Telephone Co.,

256 F.3d 516, 519 (7th Cir. 2001) (en banc).

The district court instructed the jury that it could award

punitive damages against Sexton and Burke (and MacLeod)

only if it found that “their conduct was malicious or in

reckless disregard of Plaintiff’s rights” and, if it so found, to

consider the following factors in deciding how much to

award:

— the reprehensibility of Defendant’s conduct;

— the impact of Defendant’s conduct on

Plaintiff;

— the relationship between Plaintiff and

Defendants;

— the likelihood that Defendant would repeat

the conduct if an award of punitive damages

is not made; and

— the relationship of any award of punitive

damages to the amount of actual harm the

Plaintiff suffered.

The instruction was consistent with Seventh Circuit Pattern

Civil Jury Instructions § 7.28 (2025).

The offer of proof was relevant in three ways. First, it was

relevant to the threshold question of whether both Sexton’s

Nos. 23-3060 & 24-1696 51

and Burke’s conduct was “malicious or in reckless disregard”

of Nielsen’s rights. As the district court instructed the jury:

Conduct is malicious if it is accompanied by ill

will or spite and was done for purpose of

injuring Plaintiff. Conduct is in reckless

disregard of Plaintiff’s rights if, under the

circumstances, the defendant simply did not

care about Plaintiff’s safety or rights.

See Seventh Circuit Pattern Civil Jury Instructions § 7.28

(2025). A reasonable jury might have credited Sexton’s

statement that he thought Nielsen was a “willing” participant

in an “agreed-upon” relationship, even if we doubt it would

have believed he thought there was no significant risk that

Nielsen was being coerced. If so, the jury may have been less

likely to infer that Sexton or Burke acted with “ill will or spite”

or “did not care about [Nielsen’s] safety.”

Second, the offer of proof was also relevant to the amounts

of punitive damages the jury awarded, most directly to the

reprehensibility of both Sexton’s and Burke’s actions. A

reasonable jury could conclude that while using as bait an

inmate who the prison official thinks is a willing participant

might be reprehensible enough, using an unwilling inmate

was even more so. Reprehensibility was likely a major factor

in the jury’s punitive damages awards. After all,

reprehensibility is “[p]erhaps the most important indicium of

the reasonableness of a punitive damages award” for Due

Process Clause purposes. BMW of North America, Inc. v. Gore,

517 U.S. 559, 575 (1996).

The offer of proof was also relevant to the likelihood of

repetition of Sexton’s conduct. (By the time of trial, Sexton

52 Nos. 23-3060 & 24-1696

had been promoted to shift supervisor at another prison.

Burke had retired.) In his testimony, Sexton referred on

several occasions to unstated “reasons” for the steps he took,

but the district court barred him from explaining his reasons

to the jury. Left to speculate on what these reasons might have

been, the jury might have drawn any number of unsupported

inferences that could have affected the amounts it awarded.

Given the discretionary nature of punitive damages,

errors in admitting and excluding evidence bearing directly

on a defendant’s moral culpability cannot be treated too easily

as harmless. The error here was not harmless. By way of

comparison, the standard for relevant mitigating information

in capital sentencing is similarly far broader than for evidence

relevant to guilt or innocence. See generally United States v.

Tsarnaev, 595 U.S. 302, 317–20 (2022); Eddings v. Oklahoma, 455

U.S. 104, 110 (1982). We vacate the jury’s awards of punitive

damages against Sexton and Burke. Given our holding in

Section V, at the new trial on damages both sides should be

able to present evidence and argument relevant to whether

punitive damages should be awarded and, if so, in what

amounts.

V. Compensatory Damages Under Nielsen’s Two Theories of

Liability

Finally, Sexton and Burke contend that the district court

erred by refusing to instruct the jury, if it found liability, to

determine in a special verdict the theory or theories of liability

it accepted. As discussed above, Nielsen advanced a “general

conditions” theory of liability—essentially, that Sexton and

Burke contributed to creating a toxic culture of sexual abuse

at Logan—as well as a more specific theory of liability based

on what they did after receiving the Hicks Report. The

Nos. 23-3060 & 24-1696 53

difference matters, Sexton and Burke argue, because the

theory of liability affects the scope of damages for which they

are liable: for harms they caused from August 2016 onward

for the general conditions theory, and from the Hicks Report

in December 2016 onward for the specific theory.

A district court may require a civil jury to answer

interrogatories making “a special written finding on each

issue of fact” or to answer a general verdict “together with

written questions on one or more issues of fact that the jury

must decide.” Fed. R. Civ. P. 49(a)(1) & (b)(1). “[W]e review a

district court’s refusal to submit a proposed special verdict

question … only for an abuse of discretion.” Bularz v.

Prudential Insurance Co., 93 F.3d 372, 377 (7th Cir. 1996).

We conclude that this is a rare case where a special verdict

was not just helpful but necessary. As Sexton and Burke

explain, only if the jury accepted both theories of liability

could these defendants be found deliberately indifferent for

the entire period. The fundamental problem stems from the

role of MacLeod at trial, even as a defaulted party, and in the

jury’s tasks. MacLeod was indisputably liable to Nielsen for

all her injuries. Though far from the only aspect of

compensatory damages she sought, Nielsen testified at length

to the emotional harms she suffered as an inmate while

MacLeod was sexually abusing her—i.e., from August 2016 to

February 2017. We expect that the length of time or number

of times a plaintiff experiences such abuse would likely affect

a jury’s damages award. Indeed, Nielsen’s counsel referred

aptly in closing argument to the “months and months and

months” of abuse Nielsen suffered. We must assume the jury

included in its $8 million compensatory damages award all of

Nielsen’s injuries from August 2016 onward, even though it

54 Nos. 23-3060 & 24-1696

lacked sufficient evidence to conclude that Sexton and Burke

were deliberately indifferent before December 2016.

Joint and several liability does not offer a path to affirm

here. Sexton and Burke are jointly and severally liable for

injuries they each personally contributed to causing through

their joint unconstitutional conduct, but not otherwise. See

Harper v. Albert, 400 F.3d 1052, 1061–62 (7th Cir. 2005). Sexton

and Burke acted in concert, so it would not be necessary to

apportion compensatory damages between the two of them.

But unless the jury accepted Nielsen’s general conditions

theory of liability—and we have concluded that no reasonable

jury could have done so—it should have been required to

apportion damages between injuries caused by sexual abuse

before and after the Hicks Report.

Nielsen defends the general verdict by citing Section 1983

cases in which we have said that damages should not be

apportioned where several state actors contribute by their

unconstitutional conduct to an “indivisible injury.” These

cases are readily distinguishable because each involved

essentially one discrete event. None were fairly comparable to

“months and months and months” of emotional distress

inflicted by multiple distinct sexual assaults. See Thomas v.

Cook County Sheriff’s Dep’t, 604 F.3d 293, 297–98 (7th Cir. 2010)

(death from illness after less than one week in custody);

Harper, 400 F.3d at 1054 (abuse by several guards “during a

cell-transfer procedure”); Cooper v. Casey, 97 F.3d 914, 916, 919

(7th Cir. 1996) (one episode of “kicking and punching and

macing” by several guards followed by “refusal to provide

prompt medical assistance” for two days); Watts v. Laurent,

774 F.2d 168, 171 (7th Cir. 1985) (single violent attack by fellow

juvenile detainee). While the follow-on effects of MacLeod’s

Nos. 23-3060 & 24-1696 55

abuse of Nielsen are perhaps “indivisible,” the length of time

she spent in custody subject to MacLeod’s abuse is not. The

Hicks Report is, for damages against Sexton and Burke, the

clear demarcation. 12

Certainly, Nielsen suffered “neither purely physical nor

temporary” harms. But her damages expert, Dr. Burgess,

testified to six “buckets” of harm Nielsen suffered, the first

being “physical assault,” and Nielsen’s counsel referred to

that testimony again in closing argument when asking the

jury to award damages of at least $2 million for that (and

every other) category. Thus, Nielsen’s close reading of Dr.

Burgess’s testimony that she suffered a “‘significant and

serious injury’ (singular) in the form of a ‘serious trauma’

(singular),” as well as her parsing of similar language in J.K.J

v. Polk County, 960 F.3d at 376, do not convince us that Sexton

and Burke can be held liable for all harm Nielsen suffered. We

therefore remand for a new trial on both compensatory and

punitive damages, but not liability, against Sexton and

Burke. 13

To sum up: MacLeod did not appeal, so the portion of the

judgment against him is not affected by this decision. We

12 Moreover, given the district court’s denial of Sexton and Burke’s

requested verdict form, we cannot fault them, as Nielsen invites us, for

failing to “establish [at trial] any manner to assess that ‘one trauma’ on an

assault-by-assault basis.” See Appellee’s Br. at 48.

13 Finally, Sexton and Burke argue that the district court’s multiple

errors, including three supposed errors not addressed in this opinion, had

the cumulative effect of depriving them of a fair trial. See Jordan v. Binns,

712 F.3d 1123, 1137 (7th Cir. 2013). We have granted a new trial on

compensatory and punitive damages based on the excluded evidence and

the verdict form, but we find no merit in appellants’ other contentions.

56 Nos. 23-3060 & 24-1696

affirm the jury’s finding of liability against Sexton and Burke

based on Nielsen’s specific theory of liability and the denial

of qualified immunity. We vacate the compensatory and

punitive damage awards against Sexton and Burke and

remand for a new trial on compensatory and punitive

damages for their outrageous response to the Hicks Report.

We also vacate and remand the attorney fee award for the

district court’s reconsideration in light of the result of the new

damages trial and in accord with Hensley v. Eckerhart, 461 U.S.

424 (1983). See also Blum v. Stenson, 465 U.S. 886, 895 (1984);

Uphoff v. Elegant Bath, Ltd., 176 F.3d 399, 407–08 (7th Cir. 1999).

Finally, Circuit Rule 36 shall not apply on remand if Judge

Myerscough is willing to preside over the new trial on

damages.