Dewayne Bearchild v. Kristy Cobban

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DEWAYNE BEARCHILD, No. 17-35616

Plaintiff-Appellant,

D.C. No.

v. 6:14-cv-00012-

DLC

KRISTY COBBAN; PASHA, Sgt.; SAM

JOVANOVICH; TOM BLAZ; DAN

JOHNSON; SHASHLINGE, C/O; OPINION

BRUNO, C/O; MACDONALD, Sgt.;

DENISE DEYOTT,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Montana

Dana L. Christensen, Chief District Judge, Presiding

Argued and Submitted April 12, 2019

Seattle, Washington

Filed January 16, 2020

Before: William A. Fletcher, Consuelo M. Callahan,

and Morgan Christen, Circuit Judges.

Opinion by Judge Christen;

Partial Concurrence and Partial Dissent by Judge Callahan

2 BEARCHILD V. COBBAN

SUMMARY*

Prisoner Civil Rights

The panel affirmed in part and reversed in part the district

court’s judgment in favor of defendant prison officials,

entered following a jury trial, in an action brought pursuant

to 42 U.S.C. § 1983 by an inmate at the Montana State Prison

who alleged that his Eighth Amendment rights were violated

when he was sexually assaulted during the course of a pat-

down search.

Plaintiff alleged two trial errors: (1) the failure to grant a

continuance to allow him to subpoena a key witness; and

(2) jury instructions that inaccurately explained the

substantive elements of his Eighth Amendment claim.

The panel first held that the district court did not abuse its

discretion by failing to continue plaintiff’s trial sua sponte to

allow plaintiff to subpoena a potential witness. The panel

concluded that because the record showed that plaintiff’s

right to present his case was not substantially affected by the

lack of a continuance, the district court’s decision was not

arbitrary or unreasonable.

With respect to the challenged jury instructions, the panel

recognized that there was no model jury instruction for

Eighth Amendment sexual assault, and the panel took the

opportunity to address this Circuit’s law governing this type

of claim. The panel held that a prisoner presents a viable

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

BEARCHILD V. COBBAN 3

Eighth Amendment sexual assault claim where he or she

proves that a prison staff member, acting under color of law

and without legitimate penological justification, touched the

prisoner in a sexual manner or otherwise engaged in sexual

conduct for the staff member’s own sexual gratification, or

for the purpose of humiliating, degrading, or demeaning the

prisoner. The panel held that this definition recognized that

there are occasions when legitimate penological objectives

within a prison setting require invasive searches. It also

accounts for the significant deference courts owe to prison

staff, who work in challenging institutional settings with

unique security concerns.

The panel held that jury instruction No. 12, which set out

the substantive law of plaintiff’s Eighth Amendment claim,

and which relied almost verbatim on Ninth Circuit Model

Civil Jury Instruction 9.26, misstated the elements necessary

to establish liability for an Eighth Amendment violation

arising from sexual assault. The panel further held that it was

impossible to determine whether the jury would have reached

the same result had it been properly instructed. The panel

therefore reversed the district court’s judgment and remanded

for a new trial with appropriate jury instructions on the

substantive law applicable to plaintiff’s claim. Because the

panel remanded for a new trial, it also analyzed Instruction

No. 10, based on Ninth Circuit Model Civil Jury Instruction

9.2, and concluded that the instruction did not inaccurately

state the law with respect to plaintiff’s burden of persuasion

on causation.

Concurring in part and dissenting in part, Judge Callahan

agreed with the majority’s conclusion that the district court’s

decision not to continue the trial sua sponte was within its

broad discretion and was not arbitrary or unreasonable.

4 BEARCHILD V. COBBAN

However, Judge Callahan stated that the district court’s use

of the Ninth Circuit’s model jury instruction for Eighth

Amendment excessive force claims, if error, was not plain

error warranting a new trial, particularly in light of the district

court’s additional instruction defining “sexual abuse” in a

manner well-tailored to the facts of the case.

COUNSEL

Kathryn Cherry (argued), Gibson Dunn & Crutcher LLP,

Dallas, Texas; Theodore J. Boutrous Jr., Gibson Dunn &

Crutcher LLP, Los Angeles, California; Caitlin J. Halligan

and Andrew C. Bernstein, Gibson Dunn & Crutcher LLP,

New York, New York; for Plaintiff-Appellant.

Kirsten K. Madsen (argued), Assistant Attorney General,

Agency Legal Services Bureau, Montana Department of

Justice, Helena, Montana, for Defendants-Appellees.

OPINION

CHRISTEN, Circuit Judge:

Dewayne Bearchild, an inmate at the Montana State

Prison (MSP), sued several prison staff members pursuant to

42 U.S.C. § 1983, alleging that his Eighth Amendment rights

were violated when he was sexually assaulted during the

course of a pat-down search. The district court dismissed all

defendants except Sergeant Larry Pasha, the prison guard

Bearchild accuses of converting the pat-down into a sexual

assault. After the trial court denied Pasha summary judgment

on his qualified immunity defense, Bearchild tried his case to

BEARCHILD V. COBBAN 5

a six-member jury, pro se. The jury returned a verdict in

Pasha’s favor. With the assistance of pro bono counsel,

Bearchild appeals two claimed trial errors: (1) the failure to

grant a continuance to allow him to subpoena a key witness;

and (2) jury instructions that inaccurately explained the

substantive elements of his Eighth Amendment claim.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We

first conclude that the district court did not abuse its

discretion by failing to continue Bearchild’s trial sua sponte.

With respect to the challenged jury instructions, we recognize

that there is no model jury instruction for Eighth Amendment

sexual assault, and we take this opportunity to address our

circuit’s law governing this type of claim. The model

instructions plainly misstate the law applicable to Bearchild’s

case. Because it is impossible to determine whether the jury

would have reached the same result had it been properly

instructed, we reverse the district court’s judgment and

remand for a new trial.

I.

On the morning of November 4, 2013, Bearchild and

several other MSP inmates walked from their housing unit to

a general equivalency degree (GED) class located in a

different part of the prison. Along the way, guards stopped

Bearchild and a fellow inmate to conduct pat-down searches

of both men. Bearchild alleges that Pasha’s pat-down lasted

about five minutes and involved rubbing, stroking, squeezing,

and groping in intimate areas. Bearchild claims that Pasha

then ordered him to pull his waistband away from his body,

stared at his penis, and asked, “Is that all of you?” According

to Bearchild, Pasha and the other guards who observed the

search began laughing. James Ball, another MSP inmate who

6 BEARCHILD V. COBBAN

was present, testified at trial and provided an account that was

generally consistent with Bearchild’s version of events. Ball

also testified that, after watching the first part of Pasha’s

search, he told guards “that’s not right,” and was then “told

to shut up.” Bearchild testified that Pasha started the pat-

down from behind him but then moved in front of him. On

cross-examination, Ball testified that the pat-down began with

Pasha behind Bearchild. He was not asked whether Pasha

ever walked around to the front of Bearchild’s body.

Pasha vigorously disputed Bearchild’s characterization of

the search and denied that it lasted five minutes and that it

transgressed the boundaries of a permissible pat-down. At

trial, Pasha presented witnesses who explained that

maintaining institutional security requires invasive

procedures, particularly because inmates often hide

contraband in intimate areas knowing that officers may be

reluctant to look in those places. As part of his testimony,

Pasha demonstrated the scope of the search he claimed to

have conducted using another prison employee as a stand-in

for Bearchild.

It is undisputed that Sara Simmons, the inmates’ GED

teacher, observed the first part of the search, but she did not

testify at trial. Simmons gave two written statements: one to

investigators, and one directly to Bearchild to use in his

administrative grievance. In each, she explained that her

view was limited, that she observed Pasha ask Bearchild to

pull his pants away from his waist, and that eventually she

left the scene until the search was completed. Both of

Simmons’s statements noted that Bearchild seemed upset

when she rejoined him immediately following his encounter

with Pasha and that he told Simmons the search was “not

right.” Bearchild asserts that Simmons asked Pasha if he was

BEARCHILD V. COBBAN 7

“for real” during the search, but neither of Simmons’s

statements reflect that she said anything to any of the guards.

Bearchild listed one of Simmons’s statements as a “will-

offer” exhibit for trial, but he never attempted to introduce

either statement into evidence.

II.

We limit our review of the procedural history to the

relevant events at trial, which began on July 11, 2017. The

district court began by asking Bearchild whether he intended

to present any witnesses because it appeared he had not

requested any subpoenas. Bearchild, apparently surprised,

responded that he had requested subpoenas for several

witnesses more than two months earlier, and he showed the

court a copy of a subpoena request he prepared that was dated

May 3, 2017. During the ensuing colloquy, the State

produced prison mailroom records that did not reflect any

outgoing legal mail from Bearchild on any date on or around

May 3. Bearchild explained that he consistently had

difficulty using the prison mail system and that his legal mail

often failed to reach its intended destination. Adding to the

confusion, a bag of legal mail had been stolen from a local

post office in June 2017.1

1

After the theft was discovered, the district court sent the parties a list

of the documents in the court’s file as of June 20, 2017. The court ordered

Bearchild to re-file any documents that did not appear on the list. The list

did not show any subpoena requests. Bearchild hand-filed a written

response on July 11, 2017, at the final pre-trial conference held on the

morning of the first day of trial. He informed the court that he received

the court’s notification on July 5, 2017, more than two weeks after the

district court issued it. Bearchild’s July 11 filing asserted a generalized

complaint with respect to his ability to send and receive legal documents

from MSP, but it did not contend that any documents were missing from

8 BEARCHILD V. COBBAN

The district court recognized that Bearchild was pro se,

and expressed frustration that the failure to subpoena

witnesses left no good alternatives for getting the trial started

on time. The court weighed the fact that “[w]e’re here, ready

for trial” against the fact that “Mr. Bearchild doesn’t have any

witnesses,” and observed that “everybody would like” to

“proceed with trial[.]” Ultimately, the court docketed

Bearchild’s subpoena request, and required that the State

make two inmate witnesses available to testify by video. The

court denied Bearchild’s request to issue a subpoena for Sara

Simmons, explaining that Bearchild had not provided an

address where she could be served and that he had not paid

the statutory witness fee. Bearchild did not object to this

ruling or ask for a continuance of the trial to subpoena

Simmons. He only objected to the district court’s decision to

exclude a third inmate’s written statement as hearsay. The

exclusion of the third prisoner’s testimony is not challenged

on appeal.

The trial lasted two days. The district court held a

conference to discuss proposed jury instructions on the

second day, before Pasha rested his defense case. Four

instructions are relevant to this appeal: Instructions 10, 11,

12, and 13.

Instruction No. 10 explained § 1983’s causation

requirement in broad strokes, drawing on Ninth Circuit

Model Civil Jury Instruction 9.2.2 Instruction No. 11

the district court’s file and it expressed Bearchild’s desire to proceed with

trial.

2

Ninth Circuit Jury Instructions Comm., Manual of Model Civil Jury

Instructions, at 122 (2017).

BEARCHILD V. COBBAN 9

explained the general elements of a § 1983 cause of action,

directing the jury that Bearchild had the burden of proving

Pasha “acted under color of state law” and that his actions

“deprived the plaintiff of his particular rights under the

United States Constitution as explained in later instructions.”

This instruction also explained that the parties had stipulated

that Pasha acted under color of law and directed the jury that

its verdict should be for Bearchild if it found the elements in

Instructions 11 and 12 satisfied.

Instruction No. 12 was a more detailed statement of the

substantive law pertaining to an Eighth Amendment

excessive force claim, relying almost verbatim on Ninth

Circuit Model Civil Jury Instruction 9.26.3 It provided, in

relevant part:

Under the Eighth Amendment, a convicted

prisoner has the right to be free from “cruel

and unusual punishments.” In order to prove

the defendant deprived the plaintiff of this

Eighth Amendment right, the plaintiff must

prove the following elements by a

preponderance of the evidence:

1. the defendant used excessive and

unnecessary force under all of the

circumstances;

2. the defendant acted maliciously and

sadistically for the purpose of causing

harm, and not in a good faith effort to

maintain or restore discipline; and

3

Manual of Model Civil Jury Instructions, at 192.

10 BEARCHILD V. COBBAN

3. the act of the defendant caused harm

to the plaintiff.

Instruction No. 12 went on:

In determining whether these three

elements have been met in this case, consider

the following factors:

1) the extent of the injury suffered;

2) the need to use force;

3) the relationship between the need to

use force and the amount of force

used;

4) any threat reasonably perceived by the

defendant; and

5) any efforts made to temper the

severity of a forceful response, such

as, if feasible, providing a prior

warning or giving an order to

comply[.]

In considering these factors, you should

give deference to prison officials in the

adoption and execution of policies and

practices that in their judgment are needed to

preserve discipline and to maintain internal

security in a prison.

BEARCHILD V. COBBAN 11

Finally, Instruction No. 13 provided one of several definitions

of sexual abuse taken from the Prison Rape Elimination Act’s

(PREA) implementing regulations. See 28 C.F.R. § 115.6.4

Pasha requested Instruction No. 13 to provide context for

several PREA investigation reports detailing similar

allegations against Pasha lodged by other MSP inmates.

Bearchild proffered these reports as exhibits and the district

court admitted eight of them, under seal and over Pasha’s

repeated objections, because it concluded they were public

records and not precluded by Fed. R. Evid. 404(b).

Instruction No. 13 identified conduct that constitutes “sexual

abuse” for purposes of the Prison Rape Elimination Act:

“intentional contact, either directly or through the clothing of

or with the genitalia, anus, groin, breast, inner thigh, or the

buttocks that is unrelated to official duties or where the staff

member has the intent to abuse, arouse, or gratify sexual

desire.”

Bearchild did not object to any of these instructions,

either at the time of the conference or when the district court

read the instructions to the jury. But the district court

expressed some concern with Pasha’s proposed version of

4

Congress enacted the PREA in 2003 by unanimous consent to

“establish a zero-tolerance standard for the incidence of prison rape in the

United States” and to “make the prevention of prison rape a top priority

in each prison system[.]” 34 U.S.C. § 30302(1)–(2). The Act directed the

Attorney General to “publish a final rule adopting national standards for

the detection, prevention, reduction, and punishment of prison rape.” Id.

§ 30307(a)(1). The rule established standards for investigating and

responding to allegations of sexual abuse committed against prison

inmates. 28 C.F.R. §§ 115.61–68, 115.71–73. When an investigation

substantiates allegations of sexual abuse committed by prison staff, the

presumptive disciplinary measure is termination; for sexual abuse

committed by inmates, the rule provides for disciplinary sanctions.

28 C.F.R. §§ 115.76, 115.78.

12 BEARCHILD V. COBBAN

Instruction No. 10, remarking that the proposed causation

language was “a little bit confusing.” Pasha asserted that the

instruction was appropriate because causation is a required

element in any § 1983 claim, but he accepted a minor

clarification suggested by the district court. There were no

other substantive discussions of any of the four pertinent

instructions before the district court charged the jury.

As explained, the jury returned a defense verdict and

Bearchild appeals two discrete issues. He asserts that the

district court should have ordered a continuance of the trial

sua sponte to allow time for him to subpoena Simmons. He

also argues that Instructions 10 and 12 were legally erroneous

and that he was prejudiced by their misstatements of law.

Bearchild asks that we order a new trial. We address each of

his arguments in turn.

III.

We first consider whether the district court abused its

discretion by failing to order a continuance sua sponte.

Bearchild listed eight witnesses and fifteen adverse witnesses

in the subpoena request he provided to the district court on

the first day of trial. Of the requested eight non-adverse

witnesses, seven were fellow inmates, two of whom

witnessed the pat-down. Sara Simmons, Bearchild’s GED

teacher who was also present during part of the search and

provided two written statements in the aftermath, was the

eighth non-adverse witness. Bearchild contends on appeal

that Simmons was his key witness because she was the only

non-prisoner and non-guard who observed Pasha’s search.

He argues that the importance of her testimony was

underscored when the jury asked about her absence from trial

BEARCHILD V. COBBAN 13

during deliberations.5 Given Simmons’s vital role in his case

and his own status as an incarcerated pro se litigant,

Bearchild argues that the district court abused its discretion

by not granting him time to cure his noncompliance with

statutory service and witness fee requirements. Pasha

counters that, at trial, Bearchild downplayed Simmons’s

importance and stressed the importance of Ball’s eyewitness

testimony, which was presented by video. Pasha also points

out that Bearchild could have introduced Simmons’s written

statement because it was disclosed on his exhibit list, and

Pasha did not object to it.6

A district court’s decision to grant or deny a continuance

is reviewed for a “clear abuse of . . . discretion.” United

States v. Kloehn, 620 F.3d 1122, 1126–27 (9th Cir. 2010)

(quoting United States v. Flynt, 756 F.2d 1352, 1358 (9th Cir.

1985)). We ask whether, in view of all the surrounding

circumstances, a district court’s decision not to grant a

requested continuance was “arbitrary or unreasonable.” Id.

at 1127 (quoting Flynt, 756 F.2d at 1358).

To answer this question, we apply four factors first

outlined in Flynt, including the movant’s diligence in

preparing for trial, whether a continuance would have

achieved the movant’s purpose, the inconvenience of a

5

The jury’s written question asked: “Why was the statement of the

GED teacher not presented in evidence? And/or why did [she] not

testify?”

6

District of Montana Local Rule 16.4(e) requires parties to prepare

exhibit lists that include objections raised by an opposing party. The

district court’s final pretrial order reminded all of the parties in

Bearchild’s case that “objections to exhibits are waived if they are not

disclosed on the opposing party’s exhibit list.”

14 BEARCHILD V. COBBAN

continuance to the court and non-moving party, and any

resulting prejudice the movant may have suffered as a result

of the denial. See 756 F.2d at 1359. Although we may assign

varying weight to the first three of these factors depending on

the circumstances, the last factor—prejudice resulting from

the denial—is required before error will be assigned to the

failure to grant a continuance. See Kloehn, 620 F.3d at 1127

(citing Armant v. Marquez, 772 F.2d 552, 556 (9th Cir.

1985)). We apply this same general framework even where

the party challenging the denial of a continuance on appeal

failed to request one in the district court. See United States

v. Orlando, 553 F.3d 1235, 1237 (9th Cir. 2009) (“A district

court’s grant or denial of a continuance is reviewed for abuse

of discretion even where, as here, no motion for continuance

was made.” (citing United States v. Moreland, 509 F.3d

1201, 1211 (9th Cir. 2007))).

“[T]he focus of our prejudice inquiry is the ‘extent to

which the aggrieved party’s right to present his [case] has

been affected’” by the failure to continue the trial sua sponte.

Kloehn, 620 F.3d at 1128 (quoting United States v. Mejia,

69 F.3d 309, 318 n.11 (9th Cir. 1995)). Because the record

shows that Bearchild’s right to present his case was not

substantially affected by the lack of a continuance, we

conclude that the district court’s decision was not arbitrary or

unreasonable. To the contrary, the district court

conscientiously resolved a challenging situation and acted to

ensure that Bearchild, a pro se litigant, had a fair and

reasonable opportunity to present his case to the jury.

Several facts inform our determination that Bearchild’s

right to present his case was adequately preserved. First, the

district court ordered MSP to produce two of Bearchild’s

inmate witnesses via video on the first day of trial, which was

BEARCHILD V. COBBAN 15

the same day the district court received Bearchild’s subpoena

requests. Second, the district court inquired as to whether

Pasha intended to call any of the guards on Bearchild’s

witness list, thereby enabling Bearchild to question them on

cross-examination. Third, Simmons, the only eyewitness the

court declined to subpoena, provided two written statements

to which Pasha did not object. Perhaps most important,

Bearchild expressed his desire to go forward with the trial on

the scheduled date, despite voicing concerns that he was

missing legal documents from his cell that he claimed were

removed during a temporary transfer to another facility

before trial, and despite the district court’s ruling that it

would not subpoena Simmons. Because Bearchild has not

demonstrated sufficient prejudice, the district court did not

abuse its discretion by failing to continue trial sua sponte.

Kloehn, 620 F.3d at 1127.

IV.

We next turn to Bearchild’s challenge to Instruction

No. 12, which set out the substantive law of his Eighth

Amendment claim. Bearchild did not object to this

instruction, so we review it for plain error. See C.B. v. City

of Sonora, 769 F.3d 1005, 1016 (9th Cir. 2014) (en banc).

The plain error standard requires the party challenging an

instruction to show that: (1) there was error; (2) the error was

plain; (3) the error affected that party’s substantial rights; and

(4) the error seriously affected the fairness, integrity, or

public reputation of judicial proceedings. See id. at 1017–19.

An instructional error is plain if it was “‘sufficiently clear at

the time of trial’ that the district court’s . . . instruction was

impermissible.” Hoard v. Hartman, 904 F.3d 780, 790 (9th

Cir. 2018) (quoting Draper v. Rosario, 836 F.3d 1072, 1086

(9th Cir. 2016)). A jury instruction that “adds an obviously

16 BEARCHILD V. COBBAN

non-existent element to the plaintiff’s burden of proof” is

plainly erroneous under our circuit law. Id. We will usually

find sufficient prejudice to warrant reversal where “it is

impossible to determine from the jury’s verdict and

evidentiary record that the jury would have reached the same

result had it been properly instructed.” Id. at 791 (quoting

Sanders v. City of Newport, 657 F.3d 772, 782–83 (9th Cir.

2011)).

We consider the entire set of instructions as a whole to

determine whether an individual instruction was misleading

or incorrectly stated the law. See Maddox v. City of L.A., 792

F.2d 1408, 1412 (9th Cir. 1986). Here, Instruction No. 12

must be read in conjunction with Instruction No. 11, because

Instruction No. 11 provided the jury with the basic principles

of a § 1983 cause of action and it explicitly cross-referenced

Instruction No. 12. We also consider Instruction No. 12 in

light of Instruction No. 13’s “sexual abuse” standard, which

was drawn from the PREA’s implementing regulations.

A.

Prisoner Eighth Amendment challenges generally fall into

three broad categories. One type of claim arises when staff

exhibit “deliberate indifference to serious medical needs of

prisoners.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). A

closely related type of case addresses prisoners’ challenges to

their conditions of confinement. See Hope v. Pelzer,

536 U.S. 730, 737–38 (2002). A third type of claim asserts

that prison staff used excessive force against an inmate. See

Hudson v. McMillian, 503 U.S. 1, 5–6 (1992). Here, our

inquiry focuses on the last category because Bearchild

pleaded a sexual assault claim and we have consistently

placed prisoner sexual assault claims within the same legal

BEARCHILD V. COBBAN 17

framework as excessive force claims. See Wood v. Beauclair,

692 F.3d 1041, 1051 (9th Cir. 2012); Schwenk v. Hartford,

204 F.3d 1187, 1197 (9th Cir. 2000).

In Hudson v. McMillian, the Supreme Court considered

whether an inmates’s allegation that corrections officers beat

him during his transfer to administrative segregation stated a

viable Eighth Amendment claim because the inmate did not

“suffer serious injury.” 503 U.S. at 4. The Court divided its

inquiry into two components: (1) a “subjective” inquiry into

whether prison staff acted “with a sufficiently culpable state

of mind”; and (2) an “objective component” that asked

whether “the alleged wrongdoing was objectively harmful

enough to establish a constitutional violation.” Id. at 8

(internal quotation marks omitted).

With respect to the subjective component, the Court

reiterated earlier precedent establishing that “the unnecessary

and wanton infliction of pain . . . constitutes cruel and

unusual punishment forbidden by the Eighth Amendment[,]”

id. at 5 (omission in original) (quoting Whitley v. Albers,

475 U.S. 312, 319 (1986)), but the Court cautioned that

“officials confronted with a prison disturbance must balance

the threat unrest poses to inmates, prison workers,

administrators, and visitors against the harm inmates may

suffer if guards use force.” Id. at 6. The Court observed that

“corrections officials must make their decisions ‘in haste,

under pressure, and frequently without the luxury of a second

chance.’” Id. (quoting Whitley, 475 U.S. at 320). The Court

held that the subjective inquiry for excessive force claims

“turns on whether force was applied in a good faith effort to

maintain or restore discipline or maliciously and sadistically

for the very purpose of causing harm.” Id. (internal quotation

marks omitted) (quoting Whitley, 475 U.S. at 320–21). When

18 BEARCHILD V. COBBAN

weighing the merits of excessive force claims, we have

interpreted Hudson to stand for the proposition that prison

staff should be “accorded wide-ranging deference[.]” Wood,

692 F.3d at 1050 (quoting Hudson, 503 U.S. at 6).

Hudson also explained that the objective component of an

Eighth Amendment excessive force claim is “contextual and

responsive to ‘contemporary standards of decency.’”

503 U.S. at 8 (quoting Estelle, 429 U.S. at 103). The Court

distinguished between cases that involve allegations of

insufficient medical care, where a prisoner’s medical needs

must be objectively “serious,” with excessive force cases and

held that, “[i]n the excessive force context, society’s

expectations are different. When prison officials maliciously

and sadistically use force to cause harm, contemporary

standards of decency always are violated. This is true

whether or not significant injury is evident.” Id. at 9 (internal

citation omitted). In view of the contextual nature of this

inquiry, the Court declined to establish a categorical

standard for the showing of objective harm required to prove

an Eighth Amendment excessive force claim. Instead, it set

goalposts—expressly rejecting the notion that “serious

injury” is required but noting that de minimis force is not

actionable so long as it is not “of a sort ‘repugnant to the

conscience of mankind.’” Id. at 9–10 (quoting Whitley,

475 U.S. at 327). Following the Supreme Court’s guidance,

we have consistently held that a prisoner asserting an Eighth

Amendment claim “must objectively show that he was

deprived of something ‘sufficiently serious.’” Watison v.

Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (quoting Foster

v. Runnels, 554 F.3d 807, 812 (9th Cir. 2009)). That

objective standard remains constant, but what constitutes a

sufficiently serious deprivation may evolve as “the basic

mores of society change.” Kennedy v. Louisiana, 554 U.S.

BEARCHILD V. COBBAN 19

407, 419 (2008) (quoting Furman v. Georgia, 408 U.S. 238,

382 (1972) (Burger, C.J., dissenting)). As the Supreme Court

explained in Hudson, “the Eighth Amendment’s prohibition

of cruel and unusual punishments ‘draw[s] its meaning from

the evolving standards of decency that mark the progress of

a maturing society,’ and so admits of few absolute

limitations.” 503 U.S. at 8 (alteration in original) (quoting

Rhodes v. Chapman, 452 U.S. 337, 346 (1981)).

Five factors bear on the excessive force analysis in a

typical Eighth Amendment claim: “(1) the extent of injury

suffered by an inmate; (2) the need for application of force;

(3) the relationship between that need and the amount of force

used; (4) the threat reasonably perceived by the responsible

officials; and (5) any efforts made to temper the severity of a

forceful response.” Furnace v. Sullivan, 705 F.3d 1021, 1028

(9th Cir. 2013) (quoting Martinez v. Stanford, 323 F.3d 1178,

1184 (9th Cir. 2003)). Instruction No. 12 closely paralleled

the Ninth Circuit’s model instructions for Eighth Amendment

excessive force claims. For the reader’s convenience, we

restate Instruction No. 12 here:

Under the Eighth Amendment, a convicted

prisoner has the right to be free from “cruel

and unusual punishments.” In order to prove

the defendant deprived the plaintiff of this

Eighth Amendment right, the plaintiff must

prove the following elements by a

preponderance of the evidence:

1. the defendant used excessive and

unnecessary force under all of the

circumstances;

20 BEARCHILD V. COBBAN

2. the defendant acted maliciously and

sadistically for the purpose of causing

harm, and not in a good faith effort to

maintain or restore discipline; and

3. the act of the defendant caused harm

to the plaintiff.

The instruction went on to say that:

In determining whether these three

elements have been met in this case, consider

the following factors:

1) the extent of the injury suffered;

2) the need to use force;

3) the relationship between the need to

use force and the amount of force

used;

4) any threat reasonably perceived by the

defendant; and

5) any efforts made to temper the

severity of a forceful response, such

as, if feasible, providing a prior

warning or giving an order to

comply[.]

In considering these factors, you should

give deference to prison officials in the

adoption and execution of policies and

BEARCHILD V. COBBAN 21

practices that in their judgment are needed to

preserve discipline and to maintain internal

security in a prison.

The “[u]se of a model jury instruction does not preclude

a finding of error.” Dang v. Cross, 422 F.3d 800, 805 (9th

Cir. 2005) (alteration in original) (quoting United States v.

Warren, 984 F.2d 325, 328 (9th Cir. 1993)). Further, as the

Supreme Court has emphasized, courts considering Eighth

Amendment claims must give “due regard for differences in

the kind of conduct against which an Eighth Amendment

objection is lodged.” Whitley, 475 U.S. at 320.

Bearchild does not allege that Pasha used more physical

force than necessary to quell a riot or prevent a dangerous

situation from escalating; he asserts that Pasha abused his

position of authority by converting a routine pat-down search

into a humiliating and abusive sexual assault. Cf. id.

at 315–16 (considering Eighth Amendment challenge to use

of deadly force in context of riot and hostage situation). We

agree with Bearchild that Instruction No. 12 misstated our

circuit’s law with respect to an Eighth Amendment claim

premised on a sexual assault theory. Two of our prior

decisions make this plain.

First, in Schwenk v. Hartford, we considered a § 1983

claim brought by a transsexual woman prisoner against a

male prison guard. 204 F.3d at 1193. Schwenk was initially

held in a medium-security section of the all-male Washington

State Penitentiary. Id. Schwenk alleged that the defendant-

guard, Mitchell, engaged in an escalating pattern of sexual

harassment that began with “winking, performing explicit

actions imitating oral sex, making obscene and threatening

comments, watching [Schwenk] in the shower while

22 BEARCHILD V. COBBAN

‘grinding’ his hand on his crotch area, and repeatedly

demanding that [Schwenk] engage in sexual acts with him.”

Id. Schwenk further alleged that Mitchell later propositioned

her for sex in exchange for “girl stuff” and then forcibly

grabbed her buttocks when she declined. Id. Schwenk tried

to avoid Mitchell after that encounter, but Mitchell

subsequently entered her cell, exposed himself, demanded

oral sex, and then pinned Schwenk against the bars of her cell

and “began grinding his exposed penis into her buttocks”

when she refused to comply. Id. at 1193–94. Schwenk

asserted that Mitchell retaliated after she rebuffed him by

orchestrating her transfer to a more restrictive housing unit

where she was at greater risk for sexual assault by other

inmates. Id. at 1194.

In her § 1983 complaint, Schwenk argued that this pattern

of harassment and violence constituted a deprivation of her

Eighth Amendment rights. Id. Mitchell sought qualified

immunity, primarily arguing that his conduct did not rise to

the level of a constitutional violation, even if the disputed

facts were assumed in Schwenk’s favor. Id. at 1195. The

district court denied summary judgment and Mitchell filed an

interlocutory appeal. Id. We began our analysis by

reviewing the Supreme Court’s decision in Hudson, including

the Court’s clear direction that “when prison officials

maliciously and sadistically use force to cause harm

contemporary standards of decency are always violated.” Id.

at 1196 (quoting Hudson, 503 U.S. at 9). Taking our cue

from Hudson, we ruled that “no lasting physical injury is

necessary to state a cause of action” for an Eighth

Amendment violation arising from sexual assault, Schwenk,

204 F.3d at 1196, because “[a] sexual assault on an inmate by

a guard—regardless of the gender of the guard or of the

prisoner—is deeply offensive to human dignity.” Id. at 1197

BEARCHILD V. COBBAN 23

(internal quotation marks omitted). Schwenk affirmed the

district court’s order denying Mitchell qualified immunity,

holding “the Eighth Amendment right of prisoners to be free

from sexual abuse was unquestionably clearly established

prior to the time of this alleged assault, and no reasonable

prison guard could possibly have believed otherwise.” Id.

Wood v. Beauclair followed Schwenk. 692 F.3d at 1043.

In Wood, a male prisoner brought a § 1983 claim against a

female prison guard. Id. Wood alleged that the guard had a

reputation for being “overly friendly with the inmates” and

that she pursued a relationship with him. Id. at 1044. Despite

his efforts to resist her advances, Wood alleged that a

romantic—but not sexual—relationship began, where the two

would talk “often about personal topics” and “[o]ccasionally,

they would hug, kiss, and touch each other on the arms and

legs.” Id. When Wood learned that the guard was possibly

married, he sought to end their relationship but the guard

refused. Id. Wood alleged that the guard subjected him to

“aggressive pat searches in front of other inmates on a

number of occasions,” and, in at least two separate incidents,

entered Wood’s cell and forcibly grabbed his penis. Id.

at 1044–45.

Wood filed a § 1983 action asserting “sexual harassment

by [the guard] in violation of the Eighth Amendment,” but the

district court granted partial summary judgment, dismissing

the Eighth Amendment harassment claims. Id. at 1045. The

court concluded that Wood had impliedly consented to the

sexual acts through his willing participation in the romantic

relationship and that, consequently, no sexual assault

occurred. Id. at 1046.

24 BEARCHILD V. COBBAN

Our opinion in Wood began with the premise that

“[s]exual harassment or abuse of an inmate by a corrections

officer is a violation of the Eighth Amendment.” Id. at 1046.

We went on to explain that “sexual contact between a

prisoner and a prison guard serves no legitimate role and ‘is

simply not part of the penalty that criminal offenders pay for

their offenses against society.’” Id. at 1050 (quoting Farmer

v. Brennan, 511 U.S. 825, 834 (1994)). Because there is no

“legitimate penological purpose” served by a sexual assault,

the subjective component of “malicious and sadistic intent”

is presumed if an inmate can demonstrate that a sexual assault

occurred. See id. at 1050–51 (citing Gregg v. Georgia,

428 U.S. 153, 182–83 (1976)); see also McCleskey v. Kemp,

481 U.S. 279, 301 (1987) (“[A]ny punishment might be

unconstitutionally severe if inflicted without penological

justification . . . .”). We also surveyed a range of cases from

other circuits, each of which held that sexual assault can be

cognizable as an Eighth Amendment violation. See Wood,

692 F.3d at 1050.7

Wood also contrasted sexual assault cases with Eighth

Amendment excessive force claims arising out of prison

7

Wood cited three cases: Calhoun v. DeTella, 319 F.3d 936, 939 (7th

Cir. 2003) (considering claim that prison guards “purposefully demeaned

and sexually harassed [the plaintiff-prisoner] while strip searching him in

front of female officers” (alteration in original)); Berry v. Oswalt,

143 F.3d 1127, 1131 (8th Cir. 1998) (considering claim by female prisoner

that male guard “had attempted to perform nonroutine patdowns on her,

had propositioned her for sex, had intruded upon her while she was not

fully dressed, and had subjected her to sexual comments”); and Watson v.

Jones, 980 F.2d 1165, 1165 (8th Cir. 1992) (considering claim by two

male inmates that female correctional officer routinely “fondled them

during pat-down searches”). In each case, the court concluded that the

prisoner-plaintiffs presented colorable constitutional claims. See Wood,

692 F.3d at 1050.

BEARCHILD V. COBBAN 25

guards’ efforts to suppress disturbances or restore discipline,

observing that when prison disturbances arise, “prison

officials must make ‘decisions in haste, under pressure, and

frequently without the luxury of a second chance.’” Id. at

1049–50 (quoting Hudson, 503 U.S. at 6). That context

requires courts to afford prison staff significant deference in

their use of force; only “malicious and sadistic” use of force

will rise to the level of a constitutional violation. Id. at 1050.

The same concerns are not present when officers are accused

of engaging in conduct for their own sexual gratification or to

humiliate or degrade inmates.

Existing case law distinguishes Eighth Amendment

claims arising from sexual assault and makes a few points

very clear. First, sexual assault serves no valid penological

purpose. See Wood, 692 F.3d at 1050; Schwenk, 204 F.3d at

1196 n.6. Second, where an inmate can prove that a prison

guard committed a sexual assault, we presume the guard

acted maliciously and sadistically for the very purpose of

causing harm, and the subjective component of the Eighth

Amendment claim is satisfied. See Wood, 692 F.3d at 1050.

Finally, our cases have clearly held that an inmate need not

prove that an injury resulted from sexual assault in order to

maintain an excessive force claim under the Eighth

Amendment. See id.; Schwenk, 204 F.3d at 1196. Any

sexual assault is objectively “repugnant to the conscience of

mankind” and therefore not de minimis for Eighth

Amendment purposes. Hudson, 503 U.S. at 10 (quoting

Whitley, 475 U.S. at 327).

The decision we issue today follows our prior holdings in

Schwenk and Wood—that sexual assault has no place in

prison—and it is entirely consistent with a steady drumbeat

of recent case law from our sister circuits. See, e.g., Ricks v.

26 BEARCHILD V. COBBAN

Shover, 891 F.3d 468, 476 (3d Cir. 2018); Washington v.

Hively, 695 F.3d 641 (7th Cir. 2012). As the Second Circuit

observed in Crawford v. Cuomo, “societal standards of

decency regarding sexual abuse and its harmful consequences

have evolved,” 796 F.3d 252, 256 (2d Cir. 2015), and all but

two states have criminalized sexual contact between prisoners

and guards. See Crawford, 796 F.3d at 259 n.5–6 (collecting

statutes). Moreover, Congress passed the PREA unanimously

in 2003 and the Attorney General promulgated National

Standards to Prevent, Detect, and Respond to Prison Rape in

2012. See 77 Fed. Reg. 37,106 (June 20, 2012). These

legislative enactments are the “clearest and most reliable

objective evidence of contemporary values.” Atkins v.

Virginia, 536 U.S. 304, 312 (2002) (quoting Penry v.

Lynaugh, 492 U.S. 302, 331 (1989)). Schwenk and Wood

reflect our recognition of these societal standards.

Schwenk and Wood had no occasion to define “sexual

assault” for Eighth Amendment purposes because it was

apparent that the extreme misconduct alleged in those cases

transgressed constitutional boundaries. We now hold that a

prisoner presents a viable Eighth Amendment claim where he

or she proves that a prison staff member, acting under color

of law and without legitimate penological justification,

touched the prisoner in a sexual manner or otherwise engaged

in sexual conduct for the staff member’s own sexual

gratification, or for the purpose of humiliating, degrading, or

demeaning the prisoner. This definition recognizes that there

are occasions when legitimate penological objectives within

a prison setting require invasive searches. It also accounts for

the significant deference courts owe to prison staff, who work

in challenging institutional settings with unique security

concerns. In a case like Bearchild’s, where the allegation is

that a guard’s conduct began as an invasive procedure that

BEARCHILD V. COBBAN 27

served a legitimate penological purpose, the prisoner must

show that the guard’s conduct exceeded the scope of what

was required to satisfy whatever institutional concern

justified the initiation of the procedure.8 Such a showing will

satisfy the objective and subjective components of an Eighth

Amendment claim.9

B.

With this definition in mind, and set against the backdrop

established by Hudson, Wood, and Schwenk, we conclude that

Instruction No. 12 misstated the elements necessary to

establish liability for an Eighth Amendment violation arising

from sexual assault.

Instruction No. 12 told the jury that Bearchild was

required to demonstrate that Pasha used “excessive and

unnecessary force under all of the circumstances”; that Pasha

“acted maliciously and sadistically for the purpose of causing

harm and not in a good faith effort to maintain or restore

discipline”; and that Pasha “caused harm” to Bearchild. Far

from being a good fit or perfectly reflecting the teachings of

8

In the years since we decided Schwenk and Wood, other circuits

have forged similar rules. See Ricks, 891 F.3d at 476; Crawford, 796 F.3d

at 254.

9

The dissent remarks that it is unclear whether the definition we

announce today should be woven into an excessive force instruction, or

whether it should replace Model Jury Instruction 9.26. But our task is to

resolve the issues presented by Bearchild’s appeal, not rewrite the model

jury instructions. We do not hold that Model Jury Instruction 9.26 would

be inapplicable in other cases, nor do we anticipate the facts of future

cases. As the model jury instructions recognize, trial court judges must

adapt instructions to accommodate the claims actually raised. See Manual

of Model Civil Jury Instructions, Introduction.

28 BEARCHILD V. COBBAN

Schwenk and Wood, as the dissent suggests, this instruction

misstated the law in several significant ways.

The elements identified in Instruction No. 12 placed a

greater burden on Bearchild than our law requires. As the

dissent acknowledges, our case law dictates that all of the

elements of a § 1983 sexual assault claim are established if a

prisoner proves that a sexual assault occurred. Wood,

692 F.3d at 1046. Unfortunately, Bearchild’s jury had no

way of knowing that.

The jury was instructed that Bearchild was required to

prove that any force exercised was both “excessive and

unnecessary.” They were not told that any act constituting

sexual assault is by definition both excessive and

unnecessary. See id. Similarly, the jury was instructed that

Bearchild was required to show that Pasha acted maliciously

and sadistically for the purpose of causing harm, without

being told that a showing of sexual assault also satisfies this

element. See id. The law does not require that Pasha’s

actions “caused harm to [Bearchild],” in the form of physical

or lasting emotional injury. Schwenk, 204 F.3d at 1196

(observing that sexually abusive conduct is “offensive to

human dignity,” and violates the Eighth Amendment (quoting

Felix v. McCarthy, 939 F.2d 699, 702 (9th Cir. 1991))).

Instruction No. 12 directed the jury to consider several

factors when deciding whether the three elements had been

established. The first was “the extent of the injury” Bearchild

suffered. This likely suggested that Bearchild was required

to show the pat-down caused physical injury in order to

establish an Eighth Amendment violation, a proposition

plainly contrary to our case law. See Wood, 692 F.3d

at 1050; Schwenk, 204 F.3d at 1196.

BEARCHILD V. COBBAN 29

Instruction No. 12’s direction to consider the “need to use

force” and the “relationship between the need to use force and

the amount of force used,” also likely confused the jury

because it was unaccompanied by an explanation that sexual

assault does not require violent physical force, or indeed, any

force. Consideration of “the need to use force,” taken from

the model instruction, fits when applied to a claim alleging

that staff used excessive force to respond to an altercation.

But directing a jury to consider the need to use force is

misleading, at best, for juries considering sexual assault

allegations. Further, in the circumstances of Bearchild’s case,

an instruction to consider the amount of force applied subtly

suggests that some forms of sexual assault may be de minimis

and do not rise to the level of a constitutional violation. We

emphatically rejected that notion in Wood and we reaffirm

here that sexual assault violates the Eighth Amendment

regardless of the amount of force used. See 692 F.3d at 1045

(“Sexual harassment or abuse of an inmate by a corrections

officer is a violation of the Eighth Amendment.”); see also

Hively, 695 F.3d at 643 (“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.”).

Pasha suggests that any deficiencies in Instruction No. 12

were rendered harmless by the additional guidance provided

by Instruction No. 13. Essentially, he argues that if the jury

found that sexual abuse occurred pursuant to the PREA

standard set out in Instruction No. 13, it could have applied

that finding to Instruction No. 12’s more general directions

and returned a verdict in favor of Bearchild.

30 BEARCHILD V. COBBAN

We are not persuaded. Several different problems were

caused by the application of Instructions 11–13 to the facts of

this case, and Instruction No. 13 did not cure them. First,

Instruction No. 13 set forth one of twelve classes of conduct

that constitute sexual abuse under the PREA, but the

instruction did not explain whether the PREA’s “sexual

abuse” standard had anything to do with Bearchild’s Eighth

Amendment claim. Pasha’s counsel explained to our panel

and the trial transcript makes clear, that Pasha requested the

instruction after the court ruled that Bearchild’s proffered

exhibits would be admitted. Pasha requested Instruction No.

13 to give context to the exhibits’ brief mention of the PREA

investigation that was triggered by Bearchild’s administrative

grievance. The instruction was left untethered from

Instructions 11–12, likely because Pasha asked that it be

added after the court had approved a set of instructions for the

charge conference. Contrary to the dissent’s suggestion, the

district court viewed Instruction No. 12 as the one that would

determine whether Bearchild was assaulted, not Instruction

No. 13. Because even the district court did not contemplate

Instruction No. 13 as being pertinent to Bearchild’s Eighth

Amendment claim, one could hardly expect the jury to make

such an inference. Deck v. Jenkins, 814 F.3d 954, 983 (9th

Cir. 2016) (concluding that trial judge’s erroneous

interpretation of jury instructions “vividly illustrates” that the

jury “could no more than guess at the correct rule”).

Second, the order of the instructions plays a role in our

review of the entire charge. See United States v. Warren,

25 F.3d 890, 898 (9th Cir. 1994). The set of instructions used

in this case began by explaining causation (Instruction No.

10), moved on to the two basic elements of every § 1983

claim (Instruction No. 11), identified the specific elements of

an Eighth Amendment excessive force claim (Instruction

BEARCHILD V. COBBAN 31

No. 12), and then, in Instruction No. 13, informed the jury of

conduct that satisfies one of the PREA’s standards for sexual

abuse. We see no error in Instruction No. 10, as explained

infra, but Instruction No. 11 told the jury that if Bearchild

failed to prove any of the elements in Instruction No. 12, its

verdict should be for the defendant. The jury may have read

Instruction No. 12 and decided that because Bearchild

suffered no physical injury, the facts did not support the

inference that Pasha acted maliciously and sadistically. Thus,

if the jury considered the instructions sequentially, it may

have decided there was no liability without ever reaching

Instruction No. 13.

The dissent takes issue with the panel’s conclusion that a

jury may not have reached Instruction No. 13 because “a jury

is presumed to follow the trial court’s instructions.” Deck,

814 F.3d at 979. The dissent’s objection misapprehends the

nature of the flaw in Bearchild’s jury instructions, and also

misapplies Deck. The problem arose precisely because a jury

is presumed to follow the court’s instructions, and Instruction

No. 12 directed the jury that Bearchild “must prove the

following elements,” without explaining that if they found the

pat-down became a sexual assault, Bearchild established an

Eighth Amendment violation.

The jury was not given a definition of sexual assault for

Bearchild’s Eighth Amendment claim; Instruction No. 13

informed the jury of the standard applicable to Bearchild’s

administrative grievance. Even if we were to assume that the

jury applied an acceptable definition, it had no way of

knowing that any element of Instruction No. 12 was per se

satisfied if it decided the pat-down became a sexual assault,

let alone every element. Because Instruction No. 11 directed

the jury to find in Pasha’s favor if it concluded that Bearchild

32 BEARCHILD V. COBBAN

failed to prove any of the elements in Instruction No. 12,

“[t]he instruction may have short-circuited the jury’s

deliberation by offering a path to finding for [Pasha] without

requiring that it assess all of the relevant [standards].” Frost

v. BNSF Ry. Co., 914 F.3d 1189, 1197 (9th Cir. 2019).

Pasha argues that reliance on Schwenk and Wood is

misplaced because the principles announced in those cases

arose in a summary judgment context, where the disputed

facts were viewed in the light most favorable to the plaintiff.

Pasha contends that Bearchild mistakenly assumes that, at

trial, he was entitled to a presumption that a sexual assault

occurred. This argument also misses the mark. Our task is to

determine whether the instructions correctly identified the

elements Bearchild was required to prove at trial. The

portions of Schwenk and Wood upon which we rely set out

the applicable law governing Eighth Amendment sexual

assault claims, and the legal principles articulated in these

cases are not influenced by the procedural requirement that

the facts are viewed in the light most favorable to the non-

moving party at the summary judgment stage. Contrary to

Pasha’s assertions, our case law does not bake in an

assumption that a sexual assault took place. Rather, it simply

holds that where a plaintiff proves a prison staff member

sexually assaulted him or her, the prisoner necessarily

establishes an Eighth Amendment violation. See City of Long

Beach v. Standard Oil Co., 46 F.3d 929, 936 (9th Cir. 1995)

(holding that plaintiffs are entitled to “instructions on the

theories of their case if they are supported by the evidence”).

We are not persuaded by Pasha’s argument that he would

have been hindered in presenting his defense if the

instructions had been tailored to fit an Eighth Amendment

sexual assault claim. In fact, Pasha could have defended the

BEARCHILD V. COBBAN 33

case before a properly instructed jury in exactly the same way

he did: by arguing that his pat-down search was not an

unconstitutional sexual assault, and was instead a necessarily

invasive but permissible pat-down for contraband.

C.

Bearchild did not object to Instruction No. 12 at trial, so

we next consider whether the instruction was plainly

erroneous and whether the error affected Bearchild’s

substantial rights. We conclude that both requirements are

satisfied.

An error is plain when an instruction “adds an obviously

non-existent element to the plaintiff’s burden of proof.”

Hoard, 904 F.3d at 790. Schwenk and Wood established legal

principles applicable to Eighth Amendment cases dealing

with sexual assault, and the instructions here impermissibly

deviated from those standards. Thus, on the facts of this case,

the error is not merely that the instructions were not a “model

of clarity,” C.B., 769 F.3d at 1021, nor simply “less than

artful.” United States v. Hegwood, 977 F.2d 492, 496 (9th

Cir. 1992).

The dissent argues that the lack of a model instruction

specifically tailored to this type of claim suggests that a

correct formulation is not yet plain or obvious. But the model

instructions are not a compendium of all that is plain or

obvious; they are “prepared to help judges communicate more

effectively with juries,” and they may require modification in

a particular case. Manual of Model Civil Jury Instructions,

Introduction; see also, e.g., United States v. Paul, 37 F.3d

496, 501 (9th Cir. 1994) (holding that use of instructions

closely tracking the model instructions constituted plain

34 BEARCHILD V. COBBAN

error); Hegwood, 977 F.2d at 496 (observing that use of

model instruction would have constituted plain error). To

support its plain error argument, the dissent cites to a

statement in the model instructions that “[t]he Committee has

not formulated an instruction that relates to sexual harassment

claimed by an inmate.”10 But the dissent fails to note that the

same source directs readers to Wood and Schwenk, thereby

signposting that Model Instruction 9.26, unadapted, is not the

right fit for a sexual assault claim. See id.

The third prong of the plain error test requires that we

consider whether the error prejudiced the complaining party

or otherwise affected his or her substantial rights. Hoard,

904 F.3d at 790. Even in the case of plain error review,

“[w]hen the trial court erroneously adds an extra element to

the plaintiff’s burden of proof, it is unlikely that the error will

be harmless.” Id. at 791 (alteration in original) (quoting

Sanders, 657 F.3d at 781). Bearchild introduced evidence

from which a jury could have found that Pasha stroked and

fondled him for the purpose of causing humiliation or for

Pasha’s own sexual gratification. We do not know whether

the jury found this testimony credible, but even if it did, it

likely would not have imposed liability because Instruction

No. 12 misdirected the jury. We have no difficulty

concluding that Instruction No. 12 prejudiced Bearchild.

The dissent asserts that even if the jury had been properly

instructed, it still would not have assigned liability to Pasha.

But the dissent’s wholesale adoption of Pasha’s version of

events includes several unsupported assumptions. For

example, the dissent asserts that Bearchild “conceded” he had

claimed the sexual assault lasted for five minutes, despite not

10

Manual of Model Civil Jury Instructions, at 194.

BEARCHILD V. COBBAN 35

mentioning this in his original grievance. It also asserts that

Bearchild affirmed that Pasha only momentarily grabbed his

penis. The trial transcript shows that Bearchild testified

Pasha engaged in a pat-down from behind, and then walked

around to the front of his body. On cross-examination,

Bearchild agreed that the groping and squeezing lasted five

minutes, that the inappropriate touching continued after Pasha

came around to his front, and that Pasha asked him to pull his

pants and underwear away from his body. Bearchild never

conceded that Pasha’s assault was momentary.

The original grievance makes no mention of duration, so

it can hardly be deemed contradictory to Bearchild’s

testimony, and although the dissent asserts that inmate Ball

testified the sexual assault took place entirely from behind

and lasted over five minutes, Ball merely testified that the

pat-down started from behind and lasted “a little over five

minutes.” He was not asked whether Pasha walked around to

the front of Bearchild’s body. The dissent’s view that

Bearchild corroborated Pasha’s defense by admitting that a

bulge in his waistband required an additional pat-down

misinterprets Bearchild’s claim. Bearchild did not claim that

Pasha had no justification to begin his pat-down; he claimed

that the pat-down became sexually assaultive.

Prong four of the plain error test asks whether “the error

seriously impaired the fairness, integrity, or public reputation

of judicial proceedings.” C.B., 769 F.3d at 1019 (quoting

Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 36 (1st Cir.

2006)). We do not hesitate to conclude that jury instructions

that overstate or misstate the elements a pro se prisoner must

prove undermine the fairness of judicial proceedings.

Bearchild alleged that Pasha engaged in serious misconduct

that degraded his personal dignity and undermined public

36 BEARCHILD V. COBBAN

confidence in the integrity of our penological institutions.

Because his ability to pursue his claim was fundamentally

diminished by the jury instructions in this case, the final

prong of the plain error test is satisfied.

V.

We remand this case for a new trial with appropriate jury

instructions on the substantive law applicable to Bearchild’s

claim. We find no plain error in Instruction No. 10, but

because we remand for a new trial, we briefly pass on

Bearchild’s claim that Instruction No. 10 misstated the law

with respect to § 1983 causation. Instruction No. 10 told the

jury:

In order to establish that the acts of the

defendant Larry Pasha deprived the plaintiff

of his particular rights under the United States

Constitution as explained in later instructions,

the plaintiff must prove by a preponderance of

the evidence that the acts were so closely

related to the deprivation of the plaintiff’s

rights as to be the cause of the ultimate injury.

Bearchild contends on appeal that this instruction added an

additional, and legally unnecessary, element of causation.

Bearchild did not object to this instruction, so we review for

plain error.11 See C.B., 769 F.3d at 1016.

11

Bearchild argues the court should review Instruction No. 10 de

novo under an expanded version of the pointless formality exception. We

have said “[w]e will not punish a pro se litigant with plain error rather than

de novo review simply because he failed to say the words ‘I object’ when

the trial judge and defendants knew why the instruction might be

BEARCHILD V. COBBAN 37

We start from first principles: “[i]n a § 1983 action, the

plaintiff must . . . demonstrate that the defendant’s conduct

was the actionable cause of the claimed injury. To meet this

causation requirement, the plaintiff must establish both

causation-in-fact and proximate causation.” Harper v. City

of L.A., 533 F.3d 1010, 1026 (9th Cir. 2008) (internal

citations omitted); see also Arnold v. I.B.M. Corp., 637 F.2d

1350, 1355 (9th Cir. 1981) (holding that a § 1983 plaintiff

must establish both actual and proximate causation).

Despite Bearchild’s protestations to the contrary,

Instruction No. 10 does no more than restate the principle of

proximate causation. It is true that this instruction derives

from cases that involve Monell-type municipal liability

claims, where proximate causation is often a contested issue.

It also arguably duplicates later instructions. But Instruction

No. 10 does not inaccurately state the law with respect to

Bearchild’s burden of persuasion on causation.

Clem v. Lomeli, 566 F.3d 1177 (9th Cir. 2009), another

§ 1983 case, is not to the contrary. There, we remanded for

a new trial after the district court gave the jury a nearly

identical instruction to Instruction No. 10. Id. at 1181, 1183.

The difference is that in Clem, the plaintiff was proceeding on

a deliberate indifference theory—i.e., the plaintiff alleged that

the defendant’s failure to act gave rise to § 1983 liability, and

the instruction only allowed the jury to find in the plaintiff’s

favor if “the act of defendant Lomeli deprived [Clem] of his

particular rights[.]” Id. at 1180 (first alteration in original)

(emphasis added). Thus, the instruction misstated the law

erroneous and what the objection would have been,” Chess v. Dovey,

790 F.3d 961, 971 (9th Cir. 2015), but we conclude that Instruction No. 10

survives either standard of review.

38 BEARCHILD V. COBBAN

applicable to the plaintiff’s “legitimate ‘failure to act’ theory

of liability[.]” Id. at 1182. Bearchild’s case materially differs

because his theory of liability is tied directly to Pasha’s

affirmative actions—there is no allegation that anything

Pasha failed to do violated Bearchild’s Eighth Amendment

rights. The problems we identified in Clem are not present in

this case, and we discern no plain error in Instruction No. 10.

AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED.12

CALLAHAN, Circuit Judge, concurring in part and

dissenting in part:

I agree with the majority’s conclusion that the district

court’s decision not to continue the trial sua sponte was

within its broad discretion and was not “arbitrary or

unreasonable.” United States v. Kloehn, 620 F.3d 1122, 1127

(9th Cir. 2010) (quoting United States v. Flynt, 756 F.2d

1352, 1358 (9th Cir. 1985)). However, the district court’s use

of the Ninth Circuit’s model jury instruction for Eighth

Amendment excessive force claims, if error, was not plain

error warranting a new trial, particularly in light of the district

court’s additional instruction defining “sexual abuse” in a

manner well-tailored to the facts of the case. Contrary to

the majority’s conclusion, these instructions—though

imperfect—did not require Bearchild to prove “actual force”

and “physical injury,” and they did not state or imply that

certain forms of prisoner sexual abuse fall outside the Eighth

12

Costs are awarded to Bearchild.

BEARCHILD V. COBBAN 39

Amendment’s protections against “cruel and unusual

punishments.” Accordingly, I would affirm the jury’s

verdict.

After a two-day trial, the jury in this case rejected

Bearchild’s claim that a prison guard’s brief touching of his

groin area in the course of an otherwise lawful, clothed-body

pat-down search amounted to excessive force in the form of

sexual abuse. For good reason: Bearchild’s own testimony

undercut the credibility of this allegation and suggested that

the prison guard acted reasonably and without malice after

detecting a suspicious lump at the waistband of Bearchild’s

pants. Additional witness testimony contradicted portions of

Bearchild’s account and corroborated the testimony of

Sergeant Pasha, the prison guard who conducted the pat-

down. In other words, any imperfection in the jury

instructions had no effect on the verdict; a new jury, more

clearly informed that sexual abuse does constitute “excessive

force” under the Eighth Amendment, would not decide the

case any differently. Because Bearchild has failed to

demonstrate prejudice and this case does not present the type

of “manifest injustice” required for reversal under our court’s

precedents, I respectfully dissent from that portion of the

court’s holding and would affirm the judgment below.

I.

It has been nearly six years since Bearchild, an inmate in

the Montana prison system, first alleged that prison guard

Pasha used excessive force against him during a routine,

clothed-body pat-down search of Bearchild’s legs and groin

area. At the time of the pat-down, Bearchild had just exited

a bathroom and was walking with two fellow inmates to an

educational course at the prison. Later that day, Bearchild

40 BEARCHILD V. COBBAN

submitted a grievance through the prison’s grievance system.

Lieutenant Blaz was assigned to conduct a Prison Rape

Elimination Act (PREA) investigation. Over the next week,

Blaz interviewed multiple witnesses, including Bearchild and

Pasha, reviewed various documents and incident reports, and

wrote a detailed report of investigation. Bearchild’s primary

complaint was that Pasha had him pull his pants and

underwear away from his waist in order to determine if he

was carrying contraband in his waistband. This, Bearchild

complained, was embarrassing and caused him to become

emotional due to memories of a childhood sexual assault.

Blaz ultimately concluded that Pasha’s clothed-body

search of Bearchild complied with Montana State Prison

Procedures and found “no basis” for Bearchild’s allegations

of sexual assault and staff misconduct. In his letter to

Bearchild explaining his decision, Blaz wrote:

The elements of your complaint have been

carefully examined. It is important that you

understand that a pat search is somewhat

intrusive by its nature. It requires that the

staff member engage in a level of touch that

allows detection of foreign objects. Pat

searches can range from a minor frisk to a

time consuming and more complete process.

Detection and prevention of contraband

within the facility is a valid penological

interest and absolute necessity [sic] to the

safety and security of the facility. There

appears to be no merit to the complaints of a

sexual nature that you have attributed to the

pat search therefore your claim is unfounded.

Staff will continue to perform their duties

BEARCHILD V. COBBAN 41

related to the safety and security of this

institution.

Over the next four years, Bearchild continued to pursue

his grievance and eventually filed suit in the Montana district

court pursuant to 42 U.S.C. § 1983, alleging that Pasha’s

clothed-body pat-down search constituted cruel and unusual

punishment in violation of the Eighth Amendment. At trial,

the district court’s preliminary instructions described the

parties’ factual claims and the issues to be determined by the

jury as follows:

The plaintiff Dewayne Bearchild asserts that

the defendant Larry Pasha used excessive

force and sexually assaulted him during a

clothed body pat search by fondling plaintiff’s

penis and testicles for approximately five

minutes. The plaintiff has the burden of

proving these claims.

The defendant Larry Pasha denies that the pat

search of Mr. Bearchild was performed with

excessive force or sexual intent. The

defendant claims that the pat search was

properly conducted in a good faith effort to

maintain order within the prison, lasted less

than one minute, and that plaintiff did not

suffer any injury.

Bearchild represented himself pro se. In his trial

testimony, he described the incident he characterizes as a

“sexual assault”:

42 BEARCHILD V. COBBAN

Now a pat search is a pat (indicating). Well,

his became like this (indicating). It was no

more a pat search. He was looking for the

medicine bag. He couldn’t find it. So then

his hands started coming down. And that’s

when he reached down, went up the right leg,

went by the crotch, kind of grabbed my

testicles, and then he went down to the left leg

and back up again. Then that’s when he felt

the object, he said in my waistband.

Now, remember, I was rushing to take a—to

urinate. And when I heard, “Last call,” I

didn’t actually finish urinating, and my penis

didn’t have enough time to drop down into the

pants, so it was stuck.

So when I walked out, that’s when he—he

turned around. He felt it when he was behind

me. He said, “What is this?”

And I’m now like this, looking straight

forward. “That’s my penis.”

Well, apparently he didn’t believe me, so he

came around this way. Now he’s in front of

me. He grabs this underneath. He is

squeezing. Then he’s rubbing this way.

“What is this?”

Again, “It’s my penis. You just got through

touching it.”

BEARCHILD V. COBBAN 43

. . . . And when I turned around this way,

that’s when he had me pull my underwear and

the pants away from my body so he can view

down inside. Now not seeing there’s no

weapons, he sat there.

(Emphasis added.)

On cross-examination, Bearchild affirmed this sequence

of events, including Pasha’s momentary grabbing of his penis

through his clothes. He conceded that he had, at times,

claimed the sexual assault lasted for five minutes, even

though he never mentioned this when he filed his original

grievance. And he reiterated that when the pat-down search

began, his penis was still caught in his waistband from his

recent bathroom visit, prompting Pasha to examine the lump

further.

The testimony of Bearchild’s main eyewitness, inmate

Ball, was inconsistent with Bearchild’s account. Ball testified

that the sexual assault took place entirely from behind and

lasted over five minutes, in full view of multiple inmates and

prison staff, all of whom were laughing throughout the

incident.

Pasha did not dispute that the pat-down search of

Bearchild’s groin area took place. Instead, he denied

Bearchild’s allegations of excessive touching and Bearchild’s

characterization of the incident as a sexual assault. He

presented multiple witnesses in his defense, including

witnesses who discussed (and demonstrated) the prison’s

policies and procedures for pat-down searches of an inmate’s

groin area. Significantly, both Pasha and an eyewitness,

Officer Schlosser, testified that Pasha detected a strange

44 BEARCHILD V. COBBAN

bulge in Bearchild’s waistband during the initial pat-down,

and that this—not a desire to engage in malicious and sadistic

behavior—was what prompted a focused follow-on search of

Bearchild’s waist and groin area to ensure that the object was

not contraband. This was consistent with Pasha’s original

statement to the PREA investigator. Also consistent with his

original statement, Pasha stated that he had Bearchild pull the

waistband of his pants and underwear away from his body so

that he could visually ensure he was not carrying any

contraband. Both Pasha and Schlosser testified that the pat-

down lasted only a few seconds and involved no excessive

touching of Bearchild’s groin area.

As noted in the majority’s opinion, the district court used

our standard instruction for Eighth Amendment excessive

force claims, Ninth Circuit Model Civil Jury Instruction 9.26

(Instruction No. 12), and Bearchild did not object.

Immediately following that instruction, the district court

provided an additional instruction at Pasha’s request

(Instruction No. 13), and again Bearchild did not object. That

instruction, adopted from the PREA, defined “sexual abuse”

as “intentional contact, either directly or through the clothing

of or with the genitalia, anus, groin, breast, inner thigh, or the

buttocks that is unrelated to official duties or where the staff

member has the intent to abuse, arouse, or gratify sexual

desire.”

In his opening and summation, Pasha did not argue that

sexual abuse, as defined by Instruction No. 13, falls short of

the requirements for proving excessive force as set forth in

Instruction No. 12. Nor did he argue that sexual contact took

place but was consensual. Instead, he argued—consistent

with the preliminary instructions—that his pat-down of

Bearchild’s groin area lasted no longer than necessary, was

BEARCHILD V. COBBAN 45

conducted in good faith and without malicious intent, was not

excessive or inappropriate, and was part of Pasha’s duty of

maintaining discipline at the prison. In other words, he was

just doing his job—a job that, for better or for worse, requires

him to regularly conduct pat-down searches of inmates’ leg

and groin areas in order to combat the flow of contraband

within the prison.

II.

As the majority recognizes, because Bearchild did not

object to Instruction No. 12, we may review that instruction

for plain error only. Fed. R. Civ. P. 51(d)(2); C.B. v. City of

Sonora, 769 F.3d 1005, 1016 (9th Cir. 2014) (en banc).

“Such review permits us to notice and correct a district

court’s deviation from a legal rule only if three conditions are

met”: (1) there is error; (2) the error is plain or obvious; and

(3) the error affects the moving party’s substantial rights (i.e.,

the error must be prejudicial). United States v. Jimenez,

258 F.3d 1120, 1124 (9th Cir. 2001); accord City of Sonora,

769 F.3d at 1018. This third inquiry usually means that the

error “must have affected the outcome of the district court

proceedings.” United States v. Olano, 507 U.S. 725, 734

(1993). If all three of these conditions are met, we should

exercise our discretion to correct plain error “only if the error

‘seriously affect[s] the fairness, integrity or public reputation

of judicial proceedings.’” City of Sonora, 769 F.3d

at 1018–19 (quoting Olano, 507 U.S. at 732 (internal

quotation marks and citation omitted)). The burden for

meeting the third and fourth prongs of the plain error test

rests with the appellant. Olano, 507 U.S. at 734–36; United

States v. Vonn, 535 U.S. 55, 62–63 (2002).

46 BEARCHILD V. COBBAN

The Supreme Court has explained that “appellate-court

authority to remedy [an] error” under the plain error test “is

strictly circumscribed.” Puckett v. United States, 556 U.S.

129, 134 (2009).1 “There is good reason for this; ‘anyone

familiar with the work of courts understands that errors are a

constant in the trial process, that most do not much matter,

and that a reflexive inclination by appellate courts to reverse

because of unpreserved error would be fatal.’” Id. (quoting

United States v. Padilla, 415 F.3d 211, 224 (1st Cir. 2005)

(Boudin, C. J., concurring)). Thus strict adherence to the

plain error standard is critical, as it helps “to induce the

timely raising of claims and objections, which gives the

district court . . . [the court that is] ordinarily in the best

position to determine the relevant facts and adjudicate the

dispute . . . the opportunity to consider and resolve them.” Id.

We have observed that the plain error standard of review

in the civil context is even stricter than the plain error

standard applied in criminal cases. City of Sonora, 769 F.3d

at 1016. Because “the stakes are lower in the civil context . . .

plain errors should ‘encompass[ ] only those errors that reach

1

As the Fifth Circuit has observed, the plain error standard “mandates

considerable deference to the district court and focuses on whether the

severity of the error’s harm demands reversal, . . . not whether the district

court’s action . . . deserves rebuke.” United States v. Mendoza-Velasquez,

847 F.3d 209, 212–13 (5th Cir. 2017). “After all, ‘plain-error review is

not a grading system for trial judges.’” Id. (quoting Henderson v. United

States, 568 U.S. 266, 278 (2013)). “The appellant’s burden, then, ‘is

difficult, as it should be.’” Id. (quoting Puckett, 556 U.S. at 135 (internal

citation and quotation marks omitted)). Errors warranting reversal under

the plain error standard “are rare and egregious such that they would

shock the conscience of the common man, serve as a powerful indictment

against our system of justice, or seriously call into question the

competence or integrity of the district judge.” Id. (internal quotation

marks and citations omitted).

BEARCHILD V. COBBAN 47

the pinnacle of fault envisioned by [this] standard.” Id.

at 1018 (quoting Hemmings v. Tidyman’s Inc., 285 F.3d 1174,

1193 (9th Cir. 2002) (internal citation and quotation marks

omitted)); see Draper v. Rosario, 836 F.3d 1072, 1085 (9th

Cir. 2016) (plain error in the civil context requires reversal

only in “extraordinary cases,” where “review is necessary to

prevent a miscarriage of justice”) (quoting Hemmings,

285 F.3d at 1093 (internal citation and quotation marks

omitted)); see also Franklin Prescriptions, Inc. v. N.Y. Times

Co., 424 F.3d 336, 341 (3d Cir. 2005) (“Plain error review is

discretionary—it should be exercised sparingly and should

only be invoked with extreme caution in the civil context.”)

(internal quotation marks omitted). “Accordingly, when

reviewing civil jury instructions for plain error, [this court]

consider[s] the costs of correcting an error, and—in

borderline cases—the effect that a verdict may have on

nonparties.” City of Sonora, 769 F.3d at 1018 (citing Fed. R.

Civ. P. 51 advisory committee’s note; Schiavone v. Fortune,

477 U.S. 21, 31 (1986); United States v. Petri, 731 F.3d 833,

839 (9th Cir. 2013)).2

Applying these principles, we have held that, even when

a jury instruction is “not a model of clarity,” reversal under

the plain error standard is unwarranted unless the instruction

2

See also Elder v. Holloway, 984 F.2d 991, 998 (9th Cir. 1993)

(Kozinski, J., dissenting) (“The purpose of Rule 51 is to require timely

objections to instructions so the trial judge has a chance to change them

before the jury retires to consider its verdict. Without it, a party who fails

to object to a defective instruction would get two bites at the apple. If the

party gets a favorable verdict despite the bad instruction, it wins; if the

verdict is unfavorable, the party still has a shot at a new trial by appealing

on the ground that the instruction was defective. Moreover, the cost of an

appellate reversal based on faulty jury instructions—a completely new

trial—is obviously very high.”).

48 BEARCHILD V. COBBAN

clearly misstates the law. Id. at 1021; see Dang v. Cross,

422 F.3d 800, 805 (9th Cir. 2005) (“In evaluating jury

instructions, prejudicial error results when, looking to the

instructions as a whole, the substance of the applicable law

was [not] fairly and correctly covered.”) (internal citation and

quotation marks omitted); United States v. Hegwood,

977 F.2d 492, 496 (9th Cir. 1992) (no plain error where the

court blended language from the relevant criminal statute and

a model jury instruction, even though the resulting instruction

in its entirety was “less than artful”).3 Likewise, we should

not reverse for plain error unless it is “sufficiently clear at the

time of trial” that the district court’s instruction was

impermissible. Hoard v. Hartman, 904 F.3d 780, 790 (9th

Cir. 2018) (quoting Draper, 836 F.3d at 1085); see

Henderson, 568 U.S. at 278 (noting that “lower court

decisions that are questionable but not plainly wrong (at time

of trial or at time of appeal) fall outside” the scope of plain

error review). Accordingly, when a district court uses the

relevant model jury instructions based on the offense or claim

alleged, we generally will find reversible plain error only

when that instruction (1) fails to include a necessary element,

or (2) adds an obviously non-existent one. Hoard, 904 F.3d

at 791; see also United States v. Warren, 984 F.2d 325,

327–28 (9th Cir. 1993); Hegwood, 977 F.2d at 496.

3

See also Cozzo v. Tangipahoa Parish Council–President Gov’t,

279 F.3d 273, 293–94 (5th Cir. 2002) (stating that to reverse for plain

error in civil jury instructions, the court “must find an obviously incorrect

statement of law that was probably responsible for an incorrect verdict,

leading to substantial injustice”); Teixeira v. Town of Coventry ex rel.

Przybyla, 882 F.3d 13, 18 (1st Cir. 2018) (observing that reversals on

plain error review of jury instructions are “hen’s-teeth rare”).

BEARCHILD V. COBBAN 49

III.

Here, the district court neither omitted a necessary

element nor added a non-existent one when it used Ninth

Circuit Model Civil Jury Instruction 9.26, our standard

instruction for Eighth Amendment excessive force claims.

The elements listed in Instruction No. 12, which closely

paralleled Model Jury Instruction 9.26, appropriately

reflected the core judicial inquiry for such claims: “whether

force was applied in a good-faith effort to maintain or restore

discipline, or maliciously and sadistically to cause harm.”

Hudson v. McMillan, 503 U.S. 1, 7 (1992). Likewise, the

elements listed in Instruction No. 12 essentially matched the

excessive force allegation as presented by Bearchild in his

testimony: (1) that Pasha used “excessive and unnecessary

force” by fondling Bearchild’s groin beyond what was

required for the pat-down search; (2) that this touching

constituted sexual abuse and was not “a good faith effort to

maintain or restore discipline”; and (3) that the sexual abuse

was harmful to Bearchild.

The majority claims that Instruction No. 12 “misstated the

elements necessary to establish liability for an Eighth

Amendment violation arising from sexual assault” by

requiring Bearchild to show “physical injury” and by

suggesting that “sexual assault . . . require[s] violent physical

force.” But this is not a fair reading of the instruction, which

uses neither of these terms. The plain language of the

elements portion of the instruction requires the jury to

consider only whether Pasha “used excessive and

unnecessary force under all the circumstances” and whether

he “acted maliciously and sadistically for the purpose of

causing harm and not in a good faith effort to maintain or

restore discipline.” The dichotomy presented by these

50 BEARCHILD V. COBBAN

elements—excessive and abusive behavior on the one hand,

good-faith law enforcement activity on the other—not only

appropriately addressed the “core judicial inquiry” of

Bearchild’s excessive force claim, it was a good fit for

contrasting the factual allegations of the parties, which

centered around Pasha’s intent and the duration of the pat-

down.

Perhaps the factors listed in the second half of Ninth

Circuit Model Civil Jury Instruction 9.26 are not perfectly

tailored to claims involving non-forcible sexual assault.

Could the district court have modified these factors slightly

to emphasize that proof of physical injury is not required?

Probably. Could the court have added a sentence at the end

of Instruction No. No. 13 to clarify that if the jury believed

Pasha sexually abused Bearchild, then the elements of

excessive force and willful and malicious intent are

necessarily met? Of course.

But this is plain error review, and so the question is not

whether the trial judge failed to achieve perfection. Rather,

the issue is whether the standard excessive force elements

listed in Model Jury Instruction 9.26 are legally erroneous

when the claim involves sexual abuse rather than some other

kind of physical abuse. Nothing in the model instructions or

our case law says that they are. And therefore, by definition,

the alleged instructional error perceived by the majority

cannot be plain or obvious. See Olano, 507 U.S. at 734 (in

order for an error to be “plain,” it must be “obvious” or “clear

under current law”). In fact, the comment to the model

instruction explicitly states that “[t]he Committee has not

formulated an instruction that relates to sexual harassment

claimed by an inmate.” Ninth Cir. Model Civil Jury

Inst ruc t i o n s , 9.26 Particular Rights—Eighth

BEARCHILD V. COBBAN 51

Amendment—Convicted Prisoner’s Claim of Excessive

Force, Comment (2017 ed.). The lack of a model instruction

tailored for this type of claim suggests, if anything, that the

yet-to-be-issued correct formulation of an instruction

(assuming it should differ from the standard instruction for an

Eighth Amendment excessive force claim) is not yet plain or

obvious—at least not for trial judges lacking the power of

clairvoyance.4

4

In his brief, Bearchild seems to suggest that the Montana district

court should have looked to the unpublished case of Cleveland v. Curry,

No. 07-CV-02809-NJV, 2014 WL 690846 (N.D. Cal. Feb. 21, 2014) for

guidance on how to appropriately modify the elements of Model Jury

Instruction 9.26 in an excessive force case involving alleged sexual abuse.

In Cleveland, the district court instructed the jury as follows:

Under the Eighth Amendment, a convicted prisoner has

the right to be free from “cruel and unusual

punishment.” In order to prove the defendant deprived

each plaintiff of his Eighth Amendment right, each

plaintiff must prove by a preponderance of the evidence

that defendant . . . sexually assaulted one or more of the

Plaintiffs.

In determining whether defendant . . . sexually

assaulted one or more of the Plaintiffs in this case,

consider the need to use force in conducting the search,

the relationship between that need and the amount of

force used, and whether defendant applied the force in

good faith.

2014 WL 690846, at *11–12. While I agree Cleveland provides a good

example of how district courts might exercise their discretion to fashion

jury instructions in similar cases in the future, the Cleveland instructions

are not “current law” for the purpose of plain error review.

52 BEARCHILD V. COBBAN

The majority asserts that our decisions in Schwenk v.

Hartford, 204 F.3d 1187 (9th Cir. 2000) and Wood v.

Beauclair, 692 F.3d 1041 (9th Cir. 2012) make it ‘plain and

obvious’ under current law that the district court committed

instructional error. But neither of those cases addressed

Model Jury Instruction 9.26. Instead, they stand for the non-

objectionable proposition that there is no penological

justification for a prison guard to sexually assault a prisoner,

and that if a plaintiff proves a sexual assault occurred then he

or she necessarily has met the elements of an excessive force

claim under 28 U.S.C. § 1983. See Schwenk, 204 F.3d

at 1197; Wood, 692 F.3d at 1050. Significantly, both

Schwenk and Wood arose in the summary judgment

context—in Schwenk, we rejected the defendant’s argument

for qualified immunity; in Wood, we rejected the defendant’s

consent defense—and therefore neither case addressed the

specific issue here: the appropriateness of the excessive force

jury instruction when the defendant does not deny that the

touching occurred but instead argues that it was not sexual in

nature and served a valid, penological purpose.

Bearchild also cites the Tenth Circuit’s decision in Giron

v. Corrections Corporation of America, 191 F.3d 1281 (10th

Cir. 1999), which we cited in Wood. In Giron, the defendant

prison guard did not deny the inmate’s allegations of sexual

intercourse, but instead argued at trial that the acts were

consensual. Id. at 1284. The Giron district court used an

excessive force instruction similar to Instruction No. 12 here,

and the Tenth Circuit found the instruction plainly erroneous

because it imposed an “additional hurdle [on Ms. Giron] of

showing that the coercion involved malice under a test

primarily designed for a prison guard’s use of force to

maintain order.” Id. at 1290 (emphasis added). Bearchild

argues that Giron is dispositive here. Not so: unlike the

BEARCHILD V. COBBAN 53

defendant in Giron, Pasha did not argue consent; instead, he

denied that the touching was sexual in nature or that it fell

outside the scope of a lawful, clothed-body pat-down wherein

he reasonably suspected Bearchild of carrying contraband in

his waistband.

This difference is critical. If the facts in this case were

similar to the facts in Giron or Wood—that is, if Pasha’s

defense was that sexual assault cannot, by definition,

constitute “excessive force”—then I might agree there was

plain and obvious error. But Pasha asserted that there was no

sexual assault, and at no time did he argue that sexual abuse

of inmates by prison guards falls outside of Eighth

Amendment protections against cruel and unusual

punishment. Thus the majority’s holding that “where a

plaintiff proves that a prison staff member committed a

sexual assault, the prisoner necessarily establishes an Eighth

Amendment violation,” is a correct statement of law but

inapplicable to the factual dispute at issue in this case.

The jury instructions in this case accurately (if

imperfectly) reflected our holdings in Schwenk and Wood.

Even if there was error, it was not plain.

IV.

Even if the district court committed plain and obvious

error when it used the Ninth Circuit’s standard excessive

force instruction in a case involving alleged sexual abuse,

Bearchild still has the burden of meeting the third and fourth

prongs of the plain error test: (1) prejudice (i.e., that the

outcome of the trial would have been different but for the

instructional error); and (2) that the error “seriously affect[s]

the fairness, integrity or public reputation of judicial

54 BEARCHILD V. COBBAN

proceedings.” City of Sonora, 769 F.3d at 1018–19 (internal

quotation marks and citation omitted). He has not done so.

First, any potential prejudice stemming from Instruction

No. 12 was cured by Instruction No. 13. This instruction

defined sexual abuse of an inmate to include “intentional

contact, either directly or through the clothing of or with the

genitalia, anus, groin, breast, inner thigh, or the buttocks that

is unrelated to official duties or where the staff member has

the intent to abuse, arouse, or gratify sexual desire.” Read in

conjunction with Instruction No. 12, Instruction No. 13

effectively informed the jury that touching an inmate’s groin

could, depending on the facts, amount to “excessive and

unnecessary force under all the circumstances” as opposed to

a good-faith effort to follow the prison’s security policies and

practices relating to pat-down searches. This reading also

comports with common sense, which the jury members

presumably did not abandon when they considered the

evidence and the charge.

The majority, however, speculates that “the jury may have

decided there was no liability without ever reaching

Instruction No. 13.” But this results-driven surmise ignores

clear precedent that “a jury is presumed to follow the trial

court’s instructions.” Deck v. Jenkins, 814 F.3d 954, 979 (9th

Cir. 2016) (citing Weeks v. Angelone, 528 U.S. 225, 234

(2000)). The majority cites United States v. Warren, 25 F.3d

890, 898 (9th Cir. 1994) for the proposition that “the order of

the instructions plays a role in our review of the entire

charge.” True, but in Warren we did not hold or suggest that

a jury might ignore certain instructions depending on their

sequencing, or that we may presume that the jury did so if we

disagree with its final judgment. Instead, we took the exact

opposite approach, emphasizing the importance of

BEARCHILD V. COBBAN 55

“consider[ing] how the jury would have reasonably

understood the challenged instruction in the context of the

instructions as a whole.” Warren, 25 F.3d at 897.5

Second, Bearchild’s own testimony severely undercuts

the credibility of his claim. Not only did he contradict

himself multiple times, he corroborated Pasha’s defense by

admitting that at the time of the pat-down, his penis was

caught in the waistband of his pants, causing Pasha to have to

perform an additional pat-down search to determine whether

the bulge he detected was contraband. In addition,

Bearchild’s testimony was contradicted by his own

eyewitness, whose description of the assault diverged in

material respects from Bearchild’s testimony. Pasha’s

defense witnesses, on the other hand, all tended to

corroborate his description of events and support the view

that this was a lawful—albeit uncomfortable—pat-down

search with a legitimate, penological purpose. The jury was

also provided with the original PREA investigator’s report

and notes of investigation, which corroborated Pasha’s

account and further undermined Bearchild’s claim. Thus,

even if the jury had been instructed more precisely on the

relationship between sexual abuse and excessive force, it still

would not have assigned liability to Pasha.

The majority overlooks these facts, distorts Bearchild’s

actual trial testimony, and ignores the reasonableness of

Pasha’s suspicion in order to have “no difficulty concluding

that Instruction No. 12 prejudiced Bearchild” and

5

Taking this approach in Warren, we held that the challenged

instruction, “when consider[ed] . . . in the context of the other instructions

given” at trial, did not inappropriately shift the burden of proof to the

defendant. 25 F.3d at 898.

56 BEARCHILD V. COBBAN

“undermine[d] the fairness of judicial proceedings.” This

conclusion insists that Instruction No. 12 required proof of

“physical injury” (those words appear nowhere in the

instruction), and ignores our statement in City of Sonora that

the discretion to recognize plain error in civil jury instructions

should be exercised only when the error reaches the “pinnacle

of fault envisioned by” the standard. 769 F.3d at 1018

(internal citation and quotation marks omitted). We further

instructed that courts first must consider “the costs of

correcting an error, and—in borderline cases—the effect that

a verdict may have on nonparties.” Id. (internal citations

omitted). By remanding for a new trial, the majority

compounds the costs to Pasha and to the justice system

further, even though there is no reasonable likelihood that the

result will be any different at Bearchild’s next trial. The

majority’s casual treatment of the third and fourth prongs of

plain error review opens the “plain error floodgates” that the

Supreme Court warned us to guard against in Henderson, 566

U.S. at 278.6

6

It is unclear from the majority’s opinion whether it intends in future

cases that its proposed “definition” (“[A] prisoner presents a viable Eighth

Amendment claim where he or she proves that a prison staff member,

acting under color of law and without penological justification, touched

the prisoner in a sexual manner or otherwise engaged in sexual conduct

for the staff member’s own sexual gratification, or for the purpose of

humiliating, degrading, or demeaning the prisoner”), be woven into the

standard excessive force instruction as was done in Cleveland, see supra

note 4, or if this new language is supposed to be used by district courts in

place of the elements and factors contained in Model Jury Instruction 9.26.

This lack of clarity in the majority’s proposed definition as well as its

relationship with our model jury instruction will sow confusion in the

district courts and generate additional appeals.

BEARCHILD V. COBBAN 57

V.

Here, once again, we make “a hash of the plain error

standard.” United States v. Dreyer, 705 F.3d 951, 953 (9th

Cir. 2013) (Tallman, J., dissenting). In this case, no

reasonable juror would conclude, based on a fair reading of

the instructions as a whole, that sexual abuse “does not

count” as cruel and unusual punishment unless it causes

physical injury. Likewise, no reasonable juror would

conclude, based on a fair reading of the evidence at trial, that

Bearchild’s Eighth Amendment right to be free from cruel

and unusual punishment was violated when a lawful pat-

down of Bearchild’s groin area was extended after Pasha

discovered a suspicious lump in Bearchild’s waistband. Any

imperfection in the jury instructions had nothing to do with

the outcome.

Dewayne Bearchild had his day in court. Giving him a

second bite at the apple on the grounds of instructional error,

despite his failure to object at trial, will unnecessarily

compound the costs of litigation in this case and will further

incentivize litigants to make untimely objections in future

cases. Because Bearchild has failed to demonstrate prejudice

and this case does not present the type of “manifest injustice”

required for reversal under prongs three and four of the plain

error test, I respectfully dissent.