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Bearchild v. Cobban

United States Court of Appeals, Ninth Circuit

January 16, 2020

Dewayne Bearchild, Plaintiff-Appellant,
Kristy Cobban; Pasha, Sgt.; Sam Jovanovich; Tom Blaz; Dan Johnson; Shashlinge, C/O; Bruno, C/O; MacDonald, Sgt.; Denise Deyott, Defendants-Appellees.

          Argued and Submitted April 12, 2019 Seattle, Washington

          Appeal from the United States District Court No. 6:14-cv-00012-DLC for the District of Montana Dana L. Christensen, Chief District Judge, Presiding

          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.

          Before: William A. Fletcher, Consuelo M. Callahan, and Morgan Christen, Circuit Judges.

         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 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. 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.



         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 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.


         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 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 "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.


         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]

         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 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. 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.

         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 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.


         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 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 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 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.


         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 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.


         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 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). ...

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