Gilberto DeJesus v. Sergeant Willie J. Lewis

USCA11 Case: 18-11649 Date Filed: 09/21/2021 Page: 1 of 60

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 18-11649
________________________

D.C. Docket No. 9:17-cv-80883-DMM

GILBERTO DEJESUS,

Plaintiff - Appellant,

versus

SERGEANT WILLIE J. LEWIS,
INSPECTOR CHRISTOPHER DEAN CASTNER,
each in his individual capacity,

Defendants - Appellees.

________________________

Appeal from the United States District Court
for the Southern District of Florida
________________________

(September 21, 2021)
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Before MARTIN, ROSENBAUM, and LUCK, Circuit Judges.

MARTIN, Circuit Judge:

Gilberto DeJesus says that in 2016, he was sexually assaulted by a prison

official. That official, Sergeant Willie J. Lewis, responds that the assault never

happened. Mr. DeJesus had an attorney to represent him in court, but shortly

before trial, the District Court allowed counsel to withdraw. Mr. DeJesus was ill-

prepared for trial because he had not been provided discovery materials. He was

not given transcripts of the depositions taken in discovery until the morning of his

trial, and tried to read through them—for the first time—during the morning break.

Ultimately Mr. DeJesus presented only his own testimony to show the jury that the

sexual assault he alleged he suffered amounted to cruel and unusual punishment.

The jury ruled in favor of the Defendants.

On appeal, Mr. DeJesus argues the District Court made three errors. First,

he says the District Court’s instruction to the jury about what he had to prove to

succeed on his Eighth Amendment claim against Sergeant Lewis misstated the law

and increased his burden of proof. Second, he claims the court should have

granted his motion to continue the trial in order to allow him to prepare his case.

Finally, he argues that exceptional circumstances warranted the appointment of

counsel after his former attorney withdrew from representation.

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We recognize that no trial can be perfect. However, this record reflects an

error here that we must address in order to clarify the rules governing allegations

of sexual assault made by prisoners. That is to say, at a minimum, when a prisoner

proves that a prison official, acting under color of law and without legitimate

penological justification, engages in a sexual act with the prisoner, and that act was

for the official’s own sexual gratification, or for the purpose of humiliating,

degrading, or demeaning the prisoner, the prison official’s conduct amounts to a

sexual assault in violation of the Eighth Amendment. Here, no one disputes that

the conduct alleged served no legitimate penological purpose, so the jurors should

have been instructed that the only fact they had to find was whether the sexual

assault occurred. On this record, however, Mr. DeJesus has not met his burden to

show that any errors made during the trial of his case were likely to have resulted

in an incorrect verdict. We therefore affirm the District Court’s order of final

judgment in favor of Sergeant Lewis and Inspector Christopher Dean Castner.1

I. BACKGROUND

A. THE INCIDENT

Mr. DeJesus, through counsel, filed suit in the U.S. District Court for the

Southern District of Florida in July 2017. He alleged that on the morning of

1
Sergeant Lewis and Inspector Castner are both appellees, but Mr. DeJesus’s arguments
on appeal relate only to the claim against Sergeant Lewis.

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February 4, 2016, he left G Dormitory of South Bay Correctional Facility to go

“drop a grievance at the grievance box.” Mr. DeJesus said that as he walked back

to G Dormitory, through the breezeway connecting the housing units, Sergeant

Lewis pulled him out of the line and asked him, “[Y]ou like writing grievances,

huh?” Mr. DeJesus alleged that Sergeant Lewis then pulled the elastic band of

DeJesus’s pants and said “you have a nice ass.” When Mr. DeJesus tried to pull

away, Sergeant Lewis “body slammed him to the ground.” Next, according to Mr.

DeJesus, Sergeant Lewis handcuffed him, digitally penetrated his anus, and said

“this is what I think of you grievance writers.” After this, Sergeant Lewis escorted

Mr. DeJesus to administrative confinement, where DeJesus declared a

psychological emergency so that he would be transferred to mental health

confinement because “he was in fear that [Sergeant Lewis] was taking him to

confinement to sexually assault him again.”

Mr. DeJesus filed a grievance detailing this incident a few days later. About

a month after he filed the grievance, Mr. DeJesus said Inspector Castner came to

his cell and threatened to transfer him to another prison if he did not withdraw the

grievance against Sergeant Lewis.

Mr. DeJesus brought two claims under 42 U.S.C. § 1983 against Sergeant

Lewis and Inspector Castner. Mr. DeJesus alleged that Sergeant Lewis violated his

Eighth Amendment right to be free from cruel and unusual punishment by sexually

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assaulting him. And he alleged that Inspector Castner violated his Eighth

Amendment rights by improperly threatening retaliation for his exercise of the

prison’s grievance procedures.2 Both Defendants denied any wrongdoing.

B. PRE-TRIAL LITIGATION

Two days after Mr. DeJesus filed suit, the District Court set a trial date of

March 19, 2018. The parties then conducted discovery. Defense counsel deposed

Mr. DeJesus twice. 3 Other prisoners and prison staff were also deposed.

In December 2017, Mr. DeJesus’s attorney moved to withdraw from the

case. Counsel broadly cited irreconcilable differences and noted he did not know

if Mr. DeJesus would consent to the motion to withdraw. The District Court

denied counsel’s motion, explaining that the late stage of the case combined with

the uncertainty as to whether Mr. DeJesus consented to counsel’s withdrawal

meant the court required more information about the nature of the irreconcilable

differences counsel cited. The court said counsel must confer with Mr. DeJesus

2
Mr. DeJesus’s claim against Inspector Castner was ultimately framed as arising under
the First Amendment.
3
Mr. DeJesus’s deposition had to be rescheduled because on the first date, defense
counsel was not able to bring a computer into the prison to share with DeJesus the security
camera footage of the alleged incident. Defense counsel participated in both depositions in
person, but Mr. DeJesus’s own attorney was present only by telephone.

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and, if irreconcilable differences remained, counsel could file another motion

describing “in detail” the nature of those differences. 4

Mr. DeJesus’s counsel filed a renewed motion to withdraw. Counsel

explained that the irreconcilable differences were based on information that

became available in discovery. First, counsel said he learned that during the

incident, Sergeant Lewis seized from Mr. DeJesus a package of “spice,” which is a

synthetic cannabinoid that was considered contraband. Second, Julian Almeda,

another prisoner, said Mr. DeJesus had a reputation for selling spice. And finally,

counsel explained that Mr. Almeda, who previously provided a sworn affidavit

saying that Sergeant Lewis sexually assaulted Mr. DeJesus, recanted his statement

during his deposition and instead testified that not only did DeJesus write the

affidavit, but Almeda was in confinement on the date of the incident and had no

personal knowledge of it.

On January 22, 2018, less than two months before trial (and before Mr.

DeJesus’s response was filed),5 the District Court found there were irreconcilable

4
Before the District Court denied counsel’s motion to withdraw, Mr. DeJesus submitted
a motion for appointment of counsel, offering more details about his relationship with current
counsel. The court did not receive Mr. DeJesus’s motion until January 9, 2018, and did not
consider it in ruling on counsel’s motion to withdraw. Nevertheless, for purposes of this appeal
it is relevant that in his motion for appointment of counsel, Mr. DeJesus informed the court he
did not “know if discovery was completed” and he had never been given discovery.
5
Mr. DeJesus filed a response to counsel’s renewed motion on January 19, before the
District Court ruled on it. But Mr. DeJesus had to rely on the prison to file his legal documents,
and the court did not receive it until January 29. In his response, Mr. DeJesus again argued that

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differences between DeJesus and his attorney and granted counsel’s second motion

to withdraw. The court also denied Mr. DeJesus’s earlier motion for appointment

of counsel, summarily finding that he had not shown “exceptional circumstances”

requiring the appointment of counsel.

Mr. DeJesus moved for reconsideration of both these rulings. He argued the

court ruled without giving him the opportunity to explain why exceptional

circumstances existed. He also filed two additional motions. One was another

motion for appointment of counsel, in which Mr. DeJesus cited his lack of legal

training and the fact that his placement in “Protective Management” meant he had

limited access to the law library, which restricted his ability to litigate his case.

The other was a motion to continue the upcoming trial, in which he explained that

his access to the law library was severely impaired because he was “in protective

management due to being battered by gang members.”

The District Court granted Mr. DeJesus’s motion for reconsideration,

recognizing it had ruled on counsel’s motion to withdraw without hearing from

DeJesus. Nevertheless, the court reaffirmed its earlier decisions. The District

his counsel engaged in professional misconduct by not being physically present during his
deposition. Mr. DeJesus also argued that his counsel should have investigated the Defendants’
claim that Mr. Almeda was lying. Mr. DeJesus said that if his counsel had done so, prison
records would have contradicted Almeda’s story that he was in confinement on the date of the
claimed assault. Mr. DeJesus also indicated that his counsel “never discussed” with him the
information counsel cited as the reasons for their irreconcilable differences.

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Court noted that, by Mr. DeJesus’s own account, there were irreconcilable

differences between him and counsel that warranted counsel’s withdrawal. The

court also cited its “broad discretion” to decide whether to appoint counsel in civil

cases and found there were no exceptional circumstances warranting appointment

of counsel. This was because Mr. DeJesus “lost” his counsel only after counsel

“sought to be removed based on [DeJesus’s] credibility,” and also because the

court viewed DeJesus’s legal claims as straightforward. The District Court also

denied Mr. DeJesus’s motion to continue the trial but said he could renew his

argument for a continuance.

C. TRIAL
The case proceeded to trial as scheduled. On the day trial began, Mr.

DeJesus filed a third motion for appointment of counsel, arguing that he suffered

from a long history of mental health issues and that Sergeant Lewis’s sexual

assault had affected him psychologically. Mr. DeJesus said he had made “repeated

efforts to obtain a lawyer,” because an attorney would be better equipped to handle

the conflicting trial testimony than someone unfamiliar with civil law. During a

pretrial colloquy with the parties, the District Court denied Mr. DeJesus’s third

motion, explaining that “[b]ased on the filings and including the filings of Mr.

DeJesus’s previous counsel, I have some doubts about the credibility of the case,”

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and, especially because counsel “has withdrawn for ethical reasons, appointing a

lawyer without pay . . . would be [in]appropriate.”

The District Court also addressed some housekeeping matters. It noted that

defense counsel had provided Mr. DeJesus with copies of deposition transcripts,

which he requested a few days before at the final status conference. And the court

denied Mr. DeJesus’s request, also made at the status conference, to have another

prisoner come in to testify as a witness. The court said the prisoner could not

testify because the Department of Corrections requires a request be submitted 14

days in advance and Mr. DeJesus had not listed this particular witness on his

witness list.6

In Mr. DeJesus’s opening statement to the jury, he explained the basic facts

as alleged in his complaint. He specifically described how, after submitting a

grievance, Sergeant Lewis pulled him out of line, said he had “a nice ass,” body

slammed him, handcuffed him, pulled down his pants, and digitally penetrated his

anus. Mr. DeJesus explained that the assault may have been in retaliation for a

grievance he earlier wrote about an “Officer King,” who he said was dating

Sergeant Lewis and who referred to DeJesus using a racial slur. Defendants’

opening statement laid out an alternative version of the story:

This is a case about an inmate who was on disciplinary
probation at the prison . . . , made a hand-to-hand drug
6
Mr. DeJesus’s witness list was filed by his former counsel in November 2017.

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transaction, got caught by Sergeant Lewis, attempted to
hide the drugs in the back of his pants, refused to give them
over to Sergeant Lewis, had to be taken to the ground by
Sergeant Lewis, where the drugs were ultimately
recovered, with the assistance of Inspector Castner and
Inspector [Marc] Simmons[.]

Court then recessed for a morning break, which Mr. DeJesus used to begin

reading the five deposition transcripts defense counsel provided. When the parties

came back, but before the jury was seated, the court asked Mr. DeJesus whether he

wanted to have any of the depositions read to the jury. Mr. DeJesus said he did not

know yet because this was the first time he’d seen the transcripts. 7 The court asked

defense counsel whether anything in the transcripts would be useful to Mr.

DeJesus. Counsel replied that the three prisoner depositions were “absolutely not

useful,” and actually contradicted Mr. DeJesus’s story, which counsel opined was

“one of the reasons why [DeJesus’s counsel] wanted to withdraw from the case.”

Based on that description, the District Court told Mr. DeJesus “you probably are

going to decide you don’t want to use [the deposition transcripts], but I’ll give you

a chance to read them” during the lunch break.

After the jury was brought back in, Mr. DeJesus testified on his own behalf

and told the same story he recounted in his opening statement. Defense counsel

cross-examined him, at one point asking Mr. DeJesus to look at his deposition to

7
The District Court asked Mr. DeJesus whether he had ever asked his lawyer for the
transcripts. Mr. DeJesus said he did, but that his former counsel never sent them to him.

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refresh his recollection about something. Mr. DeJesus interrupted to tell the court

that his lawyer “never gave me none of those depositions or none of this to prepare

for this.” Defense counsel then tried to impeach Mr. DeJesus with his deposition

testimony, but DeJesus said he could not remember and repeated that he did not

have copies of any depositions and was “not prepared for this.” He continued: “I

asked to please give me some type of help with counsel . . . . I’m not prepared for

this.” After some additional questioning, Mr. DeJesus again asked for counsel, but

the District Court denied his request.

Mr. DeJesus took the lunch break to try to read the deposition transcripts he

was given that morning. After lunch, the District Court again asked whether he

had decided to read any deposition testimony into the record. Mr. DeJesus said he

had not finished reading the depositions, but would probably like to introduce the

testimony of Ruben Ruiz. Based on representations from defense counsel, the

court explained that if Mr. DeJesus introduced Mr. Ruiz’s testimony, the

Defendants would introduce contradictory testimony from other prisoners. Mr.

DeJesus again said he did not know what was in those deposition transcripts, but

ultimately did not introduce any testimony.

After Mr. DeJesus rested his case, the Defendants called several witnesses,

including three other witnesses to the incident, Sergeant Lewis, Inspector Castner,

and Inspector Simmons. These witnesses walked the jury through video

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surveillance of the incident. Sergeant Lewis saw another prisoner pass something

to Mr. DeJesus in the breezeway, who put the object “[i]n the small of his back,

like he was trying to put it in his pants area.” Sergeant Lewis pulled Mr. DeJesus

out of line and patted him down. Mr. DeJesus ignored Sergeant Lewis’s questions

about the object and “acted like he didn’t know what [Lewis] was talking about.”

Sergeant Lewis said Mr. DeJesus tried to break away from him, so he took DeJesus

down to the ground. At this point, Sergeant Lewis could see a bag sticking out of

the top of Mr. DeJesus’s pants. Sergeant Lewis did not have handcuffs on him

because he was not assigned any that morning, and did not have gloves, so he did

not handcuff Mr. DeJesus or try to retrieve the bag.

By this time Inspectors Castner and Simmons noticed the scuffle and headed

towards Sergeant Lewis and Mr. DeJesus. Inspector Simmons handcuffed Mr.

DeJesus. Inspector Castner and Inspector Simmons both testified that they could

see a plastic baggy “sticking out of the top” of Mr. DeJesus’s pants. The baggy

“was not in [Mr. DeJesus’s] body,” rather, DeJesus’s pants were sagging down

slightly and the top of the baggy was “in clear view” sticking out from his pants.

Inspector Simmons put gloves on and removed the bag without touching Mr.

DeJesus’s body.

The prison officials took Mr. DeJesus to the medical unit (as is required

before a prisoner enters confinement), and then escorted him to administrative

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confinement. While he was in administrative confinement, Mr. DeJesus said he

was suicidal, so prison officials transferred him for psychological observation.

Prison officials ultimately determined that the plastic baggy found on Mr.

DeJesus contained synthetic cannabinoids referred to as spice. There were

individual packages inside the plastic baggy, which, in Inspector Simmons’s

experience, showed the contraband was probably intended to be sold. Inspector

Simmons filled out a disciplinary report, which noted that Mr. DeJesus had a

package of synthetic cannabinoids “in between his butt cheeks.” Inspector

Simmons said he wrote the report that way “[j]ust [to] specify exactly what part of

[Mr. DeJesus’s] person the drugs were located from.” Mr. DeJesus received the

disciplinary report for possession of narcotics on February 10, 2016, six days after

the incident.

Ten days after that, Mr. DeJesus called the Prison Rape Elimination Act’s

(“PREA”)8 tip line to report that he had been sexually assaulted. The PREA

investigation that followed exonerated Sergeant Lewis of all allegations.

8
Congress unanimously passed PREA, 34 U.S.C. § 30301 et seq., to “establish a zero-
tolerance standard” for sexual assault in United States prisons. See id. §§ 30302(1), 30309(9)–
(11); About – Prison Rape Elimination Act, National PREA Resource Center (last visited Aug. 2,
2021), https://www.prearesourcecenter.org/about/prison-rape-elimination-act. PREA directed
the Attorney General to “publish a final rule adopting national standards for the detection,
prevention, reduction, and punishment of prison rape.” 34 U.S.C. § 30307(a)(1). The rule
established standards for investigating and responding to allegations of sexual abuse committed
against prisoners. 28 C.F.R. §§ 115.61–68, 115.71–73.

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The jury heard more testimony that contradicted Mr. DeJesus’s version of

the events. The Defendants presented additional witnesses, including the prison

grievance coordinator, who said that contrary to Mr. DeJesus’s story, there was no

record showing he submitted a grievance right before the incident with Sergeant

Lewis. And the two named defendants specifically denied the allegations against

them. Inspector Castner said he never threatened to transfer Mr. DeJesus if he

refused to withdraw his grievance against Sergeant Lewis. Sergeant Lewis

testified that he did not sexually assault or make any lewd remarks to Mr. DeJesus.

He also said that he is married and never had any relationship with an “Officer

King.”

During his closing argument, Mr. DeJesus urged the jury to find that

Sergeant Lewis sexually assaulted him. He also told the jury that his lawyer

withdrew from the case “[a]t the last minute” and that he tried to get an attorney,

but the District Court would not appoint one. In the Defendants’ closing argument,

defense counsel recounted the facts as testified to by their witnesses and asked the

jury to judge Mr. DeJesus’s credibility and find that he was lying.

At the end of closing arguments, the District Court gave the jurors their

instructions, including Instruction 5.6, which informed them what Mr. DeJesus had

to prove to succeed on his Eighth Amendment claim against Sergeant Lewis. In

relevant part, the jury was asked to decide two questions: (1) whether “Sergeant

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Willie J. Lewis intentionally committed acts that violated Gilberto DeJesus’s right

to be free from cruel and unusual punishment,” and (2) whether Inspector Castner

violated DeJesus’s First Amendment right to access the courts. After about an

hour of deliberating, the jury returned its verdict. The jury found that neither

Sergeant Lewis nor Inspector Castner violated Mr. DeJesus’s constitutional rights.

Two days later, the District Court entered final judgment in favor of the

Defendants. This is Mr. DeJesus’s appeal.

II. JURY INSTRUCTION 5.6
We begin with Mr. DeJesus’s argument that Instruction 5.6 misstated the

law and informed the jury that he had to prove extra elements in order to succeed

on his Eighth Amendment claim. We review de novo jury instructions to

determine whether they misstate the law or mislead the jury “to the prejudice of the

party who objects to them.” Badger v. S. Farm Bureau Life Ins. Co., 612 F.3d

1334, 1339 (11th Cir. 2010); McNely v. Ocala Star-Banner Corp., 99 F.3d 1068,

1072 (11th Cir. 1996) (reviewing de novo the “subsidiary issue” of whether a jury

instruction accurately reflected the law). However, because Mr. DeJesus failed to

object to Instruction 5.6, we must also determine if any error is plain. Wood v.

President & Trs. of Spring Hill Coll. in City of Mobile, 978 F.2d 1214, 1218 (11th

Cir. 1992).

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Mr. DeJesus argues that, by reading Instruction 5.6, the District Court

instructed the jury that he had the burden of proving sexual assault and excessive

force and malicious intent—which he says is more than necessary—to prove his

Eighth Amendment claim against Sergeant Lewis. He says this Court’s decision in

Sconiers v. Lockhart, 946 F.3d 1256 (11th Cir. 2020), makes clear that sexual

assault is per se excessive force such that the only fact he had to prove was

whether the sexual assault occurred. This being the case, Mr. DeJesus says the

instruction as given was inherently prejudicial (and thus plain error) because it

increased his burden of proof.

We start by looking at the law governing Eighth Amendment sexual assault

claims.

A. THE LAW GOVERNING EIGHTH AMENDMENT SEXUAL ASSAULT
CLAIMS
There are distinct types of claims that can be brought by prisoners alleging

cruel and unusual punishment under the Eighth Amendment. Prisoners can

challenge their conditions of confinement, the excessive use of force against them,

and the deliberate indifference to their serious medical needs. See Thomas v.

Bryant, 614 F.3d 1288, 1303–04 (11th Cir. 2010); see also Sconiers, 946 F.3d at

1265 (stating that proof of an Eighth Amendment violation differs based on the

type of violation alleged). Claims of sexual assault have generally been analyzed

under the legal framework for excessive force claims. See Sconiers, 946 F.3d at

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1265; see also Boxer X v. Harris, 437 F.3d 1107, 1111 (11th Cir. 2006), abrogated

in part by Wilkins v. Gaddy, 559 U.S. 34, 130 S. Ct. 1175 (2010) (per curiam).

The prisoner’s claim must meet both a subjective and an objective component.

The subjective component requires showing that the “force” used was “sadistically

and maliciously applied for the very purpose of causing harm.” Sconiers, 946 F.3d

at 1265 (quotation marks omitted). And, in traditional use-of-force cases, the

objective component looks to whether the officer’s actions were “harmful enough”

or “sufficiently serious.” Id. at 1265 (quotation marks omitted). This excludes de

minimis uses of force. Id. at 1265–66. However, in sexual assault cases, we view

those components a bit differently.

Both parties agree—correctly, in our view—that this case is governed by

Sconiers, which also addressed a prisoner’s allegations that an officer “forcefully

penetrated [the prisoner’s] anus with his finger.” 946 F.3d at 1260–61. Sconiers

held that if an officer acted as Mr. Sconiers alleged—“forcefully shov[ing] his

finger into Sconiers’s unclothed anus after [the officer] had already taken Sconiers

to the ground”—sexual assault “of this type” is malicious and sadistic and thus

satisfies the subjective component. Id. at 1266. Sconiers went on to hold that an

officer who commits this type of action “plainly commits severe sexual abuse of a

prisoner,” thereby satisfying the objective component. Id. (quotation marks

omitted and alteration adopted).

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In Sconiers, as here, there was no question that the conduct alleged was both

sadistic and malicious as well as sufficiently serious. But Sconiers also set forth

four principles that apply in any case involving the sexual assault of a prisoner by a

prison official. First, unlike typical use-of-force cases,9 sexual assault can never

serve any valid penological purpose. Sconiers, 946 F.3d at 1259. Second, as

stated above, sexual assault is a malicious and sadistic action that satisfies the

subjective component of an Eighth Amendment claim. Id. at 1266. Third, sexual

assault is never acceptable under contemporary standards of decency, which

matters for purposes of satisfying the objective component. 10 Sconiers, 946 F.3d at

1259; see id. at 1270–1272 (Rosenbaum, J., concurring) (recounting legislative

enactments “show[ing] an unmistakable near-uniform consensus that sexual abuse

of prisoners by prison guards . . . seriously violates ‘contemporary standards of

decency’”); Crawford v. Cuomo, 796 F.3d 252, 260 (2d Cir. 2015) (holding that

the passage of PREA and states’ laws criminalizing prison officials’ sexual contact

with prisoners make clear that the sexual assault of prisoners “offends our most

9
See, e.g., Wilkins, 559 U.S. at 35, 130 S. Ct. at 1177 (describing prisoner’s allegations
that a prison official “snatched” him off the ground, “slammed him” to the floor, and punched,
kicked, kneed, and choked him) (quotation marks omitted); Hudson v. McMillian, 503 U.S. 1, 4,
112 S. Ct. 995, 997 (1992) (recounting prisoner’s testimony that prison officials punched and
kicked him, while a supervisor told the officers “not to have too much fun”) (quotation marks
omitted).
10
“The objective component of an Eighth Amendment claim is . . . contextual and
responsive to contemporary standards of decency.” Hudson, 503 U.S. at 8, 112 S. Ct. at 1000
(quotation marks omitted).

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basic principles of just punishment”). Finally, also related to the objective

component, we look at the “nature” of the force used—and the harm from a sexual

assault is inherently not de minimis. Sconiers, 946 F.3d at 1267 (quotation marks

omitted); Wilkins, 559 U.S. at 39, 130 S. Ct. at 1179.

There is only one conclusion to draw from these principles. In a case

brought by a prisoner alleging sexual assault by a prison official, that sexual

assault necessarily violates the Eighth Amendment. In order for a prisoner to meet

his burden on all elements of his Eighth Amendment claim, then, he need only

show that the prison official committed a sexual assault. This means that the

finders of fact need not consider the amount of force applied, the extent of the

injury inflicted, or any effort the official made to temper the severity of the force

used. Requiring a jury to make findings about the amount of force or the extent of

the injury in cases involving sexual assault improperly suggests that some forms of

sexual assault may be de minimis and thus do not rise to the level of an Eighth

Amendment violation. Sconiers, 946 F.3d at 1259; see also id. at 1272

(Rosenbaum, J., concurring) (“[P]hysical sexual assaults by correctional officers of

inmates violate the Eighth Amendment because no matter how difficult the inmate

is, the official is never justified in punishing him in this manner.”).

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The question left open by Sconiers is what type of conduct qualifies as a

sexual assault.11 We begin to answer that question now. We hold that the “sexual

assault” of a prisoner by a prison official in violation of the Eighth Amendment

occurs when the prison official, acting under color of law and without legitimate

penological justification, engages in a sexual act with the prisoner, and that act was

for the official’s own sexual gratification, or for the purpose of humiliating,

degrading, or demeaning the prisoner. See 18 U.S.C. § 2246(2). At a minimum,

those sexual acts include intentional sexualized touching underneath clothing,12

such as fondling or penetration; coerced sexual activity; combinations of ongoing

harassment and abuse; and exchanges of sexual activity for special treatment or to

avoid discipline.13 Sconiers, 946 F.3d at 1266 (holding that forceful digital

11
Sconiers did not have reason to define sexual assault because the conduct Mr. Sconiers
alleged so clearly contravened his constitutional rights. See 976 F.3d at 1266 (“[I]f a reasonable
jury believed Sconiers’s testimony, it would have to conclude that [the officer] sought to
sexually abuse him. . . . We do not need to linger long over the contours of our standard.”). The
conduct in this case is the same as in Sconiers, and thus also clearly qualifies as sexual assault.
Nevertheless, it is necessary to provide a definition for sexual assault that can be applied to any
set of facts.
12
Some clothed sexualized touching may also qualify as “sexual assault” in violation of
the Eighth Amendment. But as we explain below, those types of allegations will need to be
viewed on a case-by-case basis to evaluate whether they allege a “sexual assault” in violation of
the Eighth Amendment.
13
State and federal legislatures have made clear that conduct of this type is objectively
serious enough to violate the Eighth Amendment. Sconiers, 946 F.3d at 1271 (Rosenbaum, J.,
concurring) (explaining that legislative enactments are “the clearest and most reliable objective
evidence” of what violates contemporary standards of decency (quotation marks omitted)); see
18 U.S.C. §§ 2242, 2246(2) (criminalizing sexual abuse in prisons and defining the conduct that
qualifies as a “sexual act” in violation of the statute); Crawford, 796 F.3d at 259–260 & nn.5–7

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penetration of the prisoner’s anus clearly met the objective and subjective

components of an Eighth Amendment claim); Ricks v. Shover, 891 F.3d 468, 478

(3d Cir. 2018) (explaining what types of conduct are “objectively serious” enough

to qualify as a constitutional violation).

A broader range of conduct certainly qualifies as sexual assault, depending

on the facts of a given situation. 14 Such determinations are for the finders of fact to

decide in the first instance. See Ricks, 891 F.3d at 478 (declining to adopt “a

mechanical factors test” into what qualifies as sexual abuse in violation of the

Eighth Amendment because “this inquiry is necessarily contextual, fact-specific,

and to be conducted in the first instance by the District Court”); cf. Jacobellis v.

Ohio, 378 U.S. 184, 197, 84 S. Ct. 1676, 1683 (1964) (Stewart, J., concurring)

(acknowledging that some definitions of sexual acts are difficult to intelligibly

define, “[b]ut I know it when I see it”). Nevertheless, we note it may be helpful for

the fact-finder to consider things like whether the alleged conduct is of a sexual

nature; whether the alleged sexual assault did in fact occur; and whether the prison

(recounting state legislative enactments criminalizing prison officials’ sexual contact with
prisoners and describing Congress’s passage of PREA).
14
We recognize this may include conduct that does not require any physical contact with
a prisoner. See 28 C.F.R. § 115.6(7)–(8) (adopting a broad definition of sexual abuse that
violates PREA); National Standards To Prevent, Detect, and Respond to Prison Rape, 76 FR
6248-01, 2011 WL 318532, at *6250–51 (Feb. 3, 2011) (explaining that DOJ’s proposed
standards use the term sexual abuse because it “captures a broader range of sexual victimization
than rape”). But because this case involves alleged physical contact, we need not and do not
consider whether non-physical contact can constitute “sexual assault” for purposes of
establishing an excessive-force claim under the Eighth Amendment.

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official intended to sexually gratify himself or acted for the purpose of humiliating,

degrading, or demeaning the prisoner. 15

The definition of sexual assault we adopt today is similar to that used in

other jurisdictions. See, e.g., Crawford, 796 F.3d at 254; id. at 259 n.7 (explaining

the definition of sexual assault generally adopted by the majority of states);

Bearchild v. Cobban, 947 F.3d 1130, 1144–45 (9th Cir. 2020) (analyzing a

prisoner’s sexual assault claim alleging that an officer’s conduct began as “an

invasive procedure that served a legitimate penological purpose,” and thus required

showing “that the guard’s conduct exceeded the scope of what was required to

satisfy whatever institutional concern justified the initiation of the procedure”). In

adopting this definition, we recognize there are times when prison officials have a

legitimate penological purpose to touch a prisoner in what may be an invasive

manner, and we also account for the deference owed to prison staff. See Crawford,

796 F.3d at 258; Bearchild, 947 F.3d at 1145; see also 34 U.S.C. § 30309(12)

15
The concurring opinion appears to misunderstand our guidance here. See Concurring
Opinion at 51–53. These considerations apply when the alleged misconduct does not necessarily
qualify as a “sexual assault” under our description above. See supra at 20–21. When a jury finds
that a prison official engaged in an act that fits within one of the “sexual assault” categories (i.e.,
it is an intentional sexualized touching underneath clothing, such as fondling or penetration;
coerced sexual activity; a combination of ongoing harassment and abuse; or an exchange of
sexual activity for special treatment or to avoid discipline, done without legitimate penological
purpose and for the officer’s sexual gratification or for the humiliation of the prisoner), these
inquiries become moot because they are necessarily subsumed by that finding. But when a
prison official allegedly commits some other type of sexual behavior, a jury must consider these
types of inquiries to ascertain whether the conduct rises to the level of a “sexual assault” for
purposes of the Eighth Amendment.

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(excluding “legitimate medical treatment” and other medically necessary invasive

searches from PREA’s definition of rape and sexual abuse).

* * *

Before proceeding with the application of the controlling law to Mr.

DeJesus’s case, we address the ways in which the concurring opinion misconstrues

our holding today. The concurring opinion demonstrates a fundamental

misunderstanding of what our precedent requires in sexual assault cases.

Sconiers and Wilkins make sexual assault an Eighth Amendment violation

in the Eleventh Circuit. The concurring opinion does not dispute this principle.

Rather the concurring opinion conflates what is required to prove the

subjective and objective components of a sexual assault claim, when instead each

requires a distinct inquiry. The concurring opinion says we “read[] out the core

judicial inquiry” of an Eighth Amendment claim. Concurring Opinion at 51. We

have not. We know that the “core judicial inquiry” on this topic looks at “whether

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

maliciously and sadistically to cause harm.” Sconiers, 946 F.3d at 1265 (quotation

marks omitted). But this inquiry is the larger question that must include the

subjective and objective components of an Eighth Amendment claim. See id.

(“This standard requires a prisoner to establish two elements—one subjective and

one objective[.]”). Our ruling here for Mr. DeJesus’s case separately addresses

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what is required to prove both the subjective and objective components in a sexual

assault case. Again, our circuit has recognized that sexual assault can never serve

any valid penological purpose and is malicious and sadistic such that a sexual

assault satisfies the subjective component of an Eighth Amendment claim. Id. at

1259, 1266. We also know that sexual assault is never acceptable under

contemporary standards of decency, such that the nature of the force used to

commit a sexual assault is not de minimis. Id. at 1259, 1267; Wilkins, 559 U.S. at

39, 130 S. Ct. at 1179. And this satisfies the objective component.

The concurring opinion’s confusion may arise from the definition of sexual

assault we have adopted. But, contrary to the concurring opinion’s contention, we

have not eliminated either the subjective or the objective component of Eighth

Amendment claims alleging sexual assault. See Concurring Opinion at 51–52.

The definition of sexual assault we utilize here requires a jury to consider whether

the prison official acted without legitimate penological justification and whether

the official’s conduct was for the official’s own sexual gratification, or for the

purpose of humiliating, degrading, or demeaning the prisoner. This inquiry clearly

goes to the prison official’s intent. Contra id. at 51. And although we hold that,

where there is a sexual assault, it is not necessary to inquire into the amount of

force applied, the extent of the injury inflicted, or any effort the official made to

temper the severity of the force used in relation to the objective component, we

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have not done away with the requirement to prove that the prison official’s conduct

was sufficiently severe. See id. at 44, 51 (arguing that we have conflated the issue

of whether a prisoner’s allegations of sexual assault ever occurred with the issue of

whether that alleged conduct, “if true, was excessive” and meets the objective

component). When jurors consider whether the prison official was acting without

legitimate penological justification, they are considering whether the prisoner has

met his burden of proof on the objective component. See Sconiers, 946 F.3d at

1266 (citing, inter alia, Ricks, 891 F.3d at 476) (recognizing that some contact,

such as that involved in a body-cavity search, may amount to an Eighth

Amendment violation if that contact “has no legitimate penological purpose”

(quotation marks omitted)); Crawford, 796 F.3d at 256 (“[A] single act of sexual

abuse may violate the Eighth Amendment if, as in this case, it is entirely gratuitous

and devoid of penological purpose.”). We recognize that not every invasive

touching by a prison official amounts to an Eighth Amendment violation. See

supra at 22. Nevertheless, the concurring opinion disregards the distinction we

plainly made. We treat sexual assault cases differently because sexual assault is

never acceptable under contemporary standards of decency. 16 Thus, when the

16
The concurring opinion cites Wilkins for its proposed two-step analysis, see
Concurring Opinion at 49 (citing Wilkins, 559 U.S. at 40, 130 S. Ct. at 1138), but Wilkins was a
“typical” physical assault case, not a sexual assault case. See Wilkins, 559 U.S. at 35, 130 S. Ct.
at 1177. For this reason, the concurring opinion’s rigid reliance on the two-step analysis in
Wilkins is inapt. See supra at 18 & n.9. Consider the absurd consequences of adopting the

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sexual assault occurs it is necessarily constitutionally excessive in violation of the

Eighth Amendment. Once a jury finds that a sexual assault that meets the

definition here has occurred, it is not logical to also require the jury to go on to

make a separate finding about whether the assault is sufficiently severe.

As we understand the reasons given in the concurring opinion for not joining

our opinion, they reflect a flawed reading of our precedent as well as the holding

we reach today.

B. REVIEWING INSTRUCTION 5.6 FOR PLAIN ERROR
With that, we must review whether Instruction 5.6 misstated the law of this

circuit. If Sergeant Lewis sexually assaulted Mr. DeJesus,17 DeJesus has met his

burden to show an Eighth Amendment violation. See Sconiers, 946 F.3d at 1266–

67. But in order to reverse the jury’s verdict based on a misstatement of law in a

jury instruction, and on plain error review, the error must also be “so fundamental

as to result in a miscarriage of justice.” Farley v. Nationwide Mut. Ins. Co., 197

F.3d 1322, 1329 (11th Cir. 1999) (quotation marks omitted). This type of error

concurring opinion’s proposed two-step test here. After the jury determines Sergeant Lewis
acted as Mr. DeJesus alleged—digitally penetrating DeJesus’s anus for no legitimate penological
or medical purpose but instead for Lewis’s own personal gratification or to demean or humiliate
DeJesus—the concurrence would then have the jury make the redundant determination of
whether this conduct, which qualifies as a sexual assault by any standard, is “severe” enough.
We do not read the Supreme Court’s or this circuit’s precedent to require such an approach.
17
Notably, there was no argument that any penological purpose existed for the specific
conduct alleged here. Thus the issue in Mr. DeJesus’s case was whether the sexual assault
happened at all.

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only happens in “exceptional cases.” Id. (quotation marks and emphasis omitted).

“To meet this stringent standard, a party must prove that the challenged instruction

[1] was an incorrect statement of the law and [2] that it was probably responsible

for an incorrect verdict, leading to substantial injustice.” Id. at 1329–30 (quotation

marks omitted and alteration adopted). Mr. DeJesus therefore must prove that the

instruction misled the jury or left the jury to speculate as to an essential point of

law. Id. at 1330. “In other words, the error of law must be so prejudicial as to

have affected the outcome of the proceedings.” Id. (quotation marks omitted).

1. Misstatement of Law

We review the jury instructions and verdict form together to determine

whether Instruction 5.6 misstated the law or misled the jury. McNely, 99 F.3d at

1072. At Mr. DeJesus’s trial, the jury was instructed that in order for DeJesus to

prevail, he must prove four elements:

First: That Sgt. Lewis intentionally digitally penetrated
Mr. Dejesus’s anus;

Second: That the force used against Mr. Dejesus by Sgt.
Lewis was excessive;

Third: That Sgt. Lewis’s conduct caused Mr. Dejesus’s
injuries; and

Fourth: That Sgt. Lewis acted under color of law.

Elaborating on the second element, the District Court told the jurors they must

decide

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whether any force used in this case was excessive based
on whether the force, if any, was applied in a good-faith
effort to maintain or restore discipline, or instead whether
it was applied maliciously or sadistically to cause harm.
In making that decision you should consider the amount of
force used in relationship to the need presented; the motive
of Sgt. Lewis; the extent of the injury inflicted; and any
effort made to temper the severity of the force used. Of
course, officers may not maliciously or sadistically use
force to cause harm regardless of the significance of the
injury to the prisoner. But not every push or shove—even
if it later seems unnecessary—is a constitutional violation.
Also, an officer always has the right to use the reasonable
force that is necessary under the circumstances to maintain
order and ensure compliance with jail or prison
regulations.
The verdict form tasked the jury with finding whether Sergeant Lewis

“intentionally committed acts that violated Gilberto Dejesus’s right to be free from

cruel and unusual punishment.”18 Our job here is to apply the principles governing

Eighth Amendment sexual assault claims and decide whether, based on the entirety

of Instruction 5.6 and the verdict form, the jurors understood the issues and were

not misled. 19

18
If the jury answered yes to the first question, they were also required to determine
whether Sergeant Lewis acted under color of law; and if so, whether Sergeant Lewis’s conduct
caused Mr. DeJesus’s injuries.
19
The Ninth Circuit recently addressed this precise issue in a case alleging sexual assault
by a prison official. See Bearchild, 947 F.3d at 1135. Because the Ninth Circuit principles
governing Eighth Amendment sexual assault claims are consistent with those recognized by our
Court, we find Bearchild persuasive. See Bearchild, 947 F.3d at 1144–45; Sconiers, 946 F.3d at
1259, 1266–67.

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Here, Instruction 5.6 required the jury to find both that the sexual assault

occurred and that the force used against Mr. DeJesus was excessive. The jurors

were not told that conduct amounting to a sexual assault is “by definition”

sufficiently severe to qualify as an Eight Amendment violation. Bearchild, 947

F.3d at 1145; see Sconiers, 946 F.3d at 1266. Instead the jury was instructed to

consider, in determining whether the force was excessive, “the amount of force

used in relationship to the need presented,” and “any effort made to temper the

severity of the force used.” But these directions were likely to mislead the jurors.

The jury was never told that, due to the inherent nature of a sexual assault, proving

an Eighth Amendment violation does not require an additional finding about the

extent of physical force used. See Sconiers, 946 F.3d at 1259, 1267 (citing

Wilkins, 559 U.S. at 39, 130 S. Ct. at 1179); Bearchild, 947 F.3d at 1145–46. It

requires only proving that the sexual assault occurred. Further, the instruction to

the jury that they consider the “extent of the injury inflicted,” suggested that Mr.

DeJesus was required to show Sergeant Lewis’s actions caused physical injury.

But this is not what our sexual-assault excessive-force precedent requires.

Sconiers, 946 F.3d at 1267.

In sum, Instruction 5.6 misstated the law governing an Eighth Amendment

claim in a sexual assault case. We offer no criticism of Eleventh Circuit Pattern

Instruction 5.6 in the context of excessive-force cases, and note that no model jury

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instruction for Eighth Amendment sexual assault claims currently exists. To

reiterate, Eighth Amendment violations premised on a prison official’s sexual

assault of a prisoner are treated differently. Thus, when the District Court relied

upon the more general pattern instruction for excessive force, it committed error in

the context of a claim of sexual assault.

2. Prejudice

Having established error, Mr. DeJesus must still show he was prejudiced by

the misstatement of law in Instruction 5.6. See Farley, 197 F.3d at 1329–30. He

has not met this burden. We conclude that the instruction was likely not

“responsible for an incorrect verdict” that would have affected the outcome of the

trial, id., because the evidence reasonably supports the jury’s finding that no sexual

assault occurred. We briefly discuss the evidence again here.

Mr. DeJesus testified that Sergeant Lewis sexually assaulted him and made a

lewd remark. As documentary evidence, Mr. DeJesus submitted the disciplinary

reports filed after the incident, which provided a description of the incident:

“DeJesus had a package containing 2 smaller packets containing 12 grams of (red)

K-2 spice on his person in between his butt cheeks.”20 He also submitted a Florida

regulation titled “Searches of Inmates,” which stated that if an officer believes a

20
At trial, Mr. DeJesus took the position that the contraband was not his and Sergeant
Lewis planted it on him.

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situation warrants the cavity search of a prisoner, certain procedures must be

followed, including that medical personnel must perform the cavity search. See

Fla. Admin. Code Ann. R. 33-602.204(3) (2020).

The Defendants’ version of the facts, however, differs greatly. Sergeant

Lewis expressly denied Mr. DeJesus’s version of the events. He said he witnessed

another prisoner pass something to Mr. DeJesus, who put the object in the back of

his pocket or the back of his pants. It was this that caused Sergeant Lewis to

confront Mr. DeJesus. Sergeant Lewis, Inspector Castner, and Inspector Simmons

all testified that Simmons, not Lewis, handcuffed Mr. DeJesus after Simmons and

Castner arrived to help. The three prison officials also testified that the plastic bag

of what they believed to be contraband was in plain view, sticking out of the top of

Mr. DeJesus’s pants near the small of his back. And, again, all three officials

testified that Inspector Simmons (who was wearing gloves) removed the object that

was sticking out of Mr. DeJesus’s pants. Inspector Simmons testified that when he

wrote the disciplinary reports, he wrote the contraband was found between Mr.

DeJesus’s “butt cheeks” because he wanted to “specify exactly what part of

[DeJesus’s] person the drugs located were from.” The contraband “was not in his

body”; rather, Mr. DeJesus’s pants were sagging down and the bag was sticking

out near “the top of [his] buttocks” so Inspector Simmons “didn’t even have to

touch [DeJesus’s] body to remove those drugs.”

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The jury also heard from several witnesses that the PREA investigation into

the alleged assault cleared Sergeant Lewis of any misconduct. The jury heard

other evidence that Mr. DeJesus had previously been convicted of crimes of

dishonesty and that there was no record of DeJesus filing a grievance before the

incident—which was the reason he said he was in the breezeway in the first place.

The jury was left to decide whether Sergeant Lewis sexually assaulted Mr.

DeJesus. In response to the question, posed on the verdict form as to whether

Sergeant Lewis “intentionally committed acts” that violated Mr. DeJesus’s right to

be free from cruel and unusual punishment, the jury said he did not. Mr. DeJesus

argues that based on the instructions and the use of a general verdict form, the jury

could have based its verdict on something other than a finding that the assault

occurred. But because the evidence presented to the jury was offered to prove or

disprove the fact of the assault, Mr. DeJesus’s argument does not persuade us. Cf.

Bearchild, 947 F.3d at 1135, 1148 (holding that the erroneous jury instruction

prejudiced Bearchild because the officer was arguing the pat-down was invasive

but permissible, not that it never happened, such that the jury still “likely would

not have imposed liability” on the officer even if the jury disbelieved the officer).

On these facts, we recognize that Instruction 5.6 misstated the law.

Nevertheless, Mr. DeJesus failed to meet his burden to show the instruction was

responsible for an incorrect verdict.

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III. MOTIONS FOR APPOINTMENT OF COUNSEL AND A
CONTINUANCE

We next turn to Mr. DeJesus’s challenges to the District Court’s denials of

his motion for a continuance and his motions for appointment of counsel. We

review each ruling for abuse of discretion. Smith v. Fla. Dep’t of Corr., 713 F.3d

1059, 1063 (11th Cir. 2013) (per curiam) (denying motion to appoint counsel);

Rink v. Cheminova, Inc., 400 F.3d 1286, 1296 (11th Cir. 2005) (denying motion

for continuance). Mr. DeJesus relies on the same procedural history to argue that

the District Court abused its discretion in denying each claim here, but we view the

District Court’s denial of Mr. DeJesus’s request for a continuance as requiring

more attention. We therefore begin with that motion.

A. REQUEST FOR CONTINUANCE
In determining whether the District Court abused its discretion in denying a

continuance, we consider: (1) the moving party’s diligence in his efforts to prepare

his case before trial; (2) the likelihood that the need for a continuance would have

been remedied had the continuance been granted; (3) the extent to which granting

the continuance would have inconvenienced the court and the opposing party; and

(4) the extent to which the moving party might have suffered harm as a result of

the district court’s denial. Rink, 400 F.3d at 1296. This Court has called the fourth

factor the “most important[]” factor, and has required the moving party to prove he

was “extreme[ly]” or “severely” prejudiced. Quiet Tech. DC-8, Inc. v. Hurel-

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Dubois UK Ltd., 326 F.3d 1333, 1351 (11th Cir. 2003); Rink, 400 F.3d at 1296

(quotation marks omitted).

The District Court swiftly rejected Mr. DeJesus’s request for a continuance,

citing DeJesus’s assertion that he was in protective custody and could not access

the law library as the reasons for denying a continuance. But Mr. DeJesus offered

another reason for needing a continuance—so that he “may properly prepare” for

trial. And this wasn’t the first time Mr. DeJesus told the court about his difficulty

preparing for trial. In previous motions, he told the District Court that his former

counsel did not discuss with him the facts revealed in discovery and reiterated that

he did not “know if discovery was completed” because that “discovery has never

been furnished to” him. At the status conference held one week before trial, Mr.

DeJesus again told the District Court he had not received any deposition

transcripts, including his own, and he did not know what they contained. Mr.

DeJesus was provided with deposition transcripts on the morning of trial, but did

not have time to read them and reiterated at least six times (including in his closing

argument to the jury) that he was unable to prepare for trial. Based on these facts,

Mr. DeJesus argues that all four continuance factors strongly favored granting his

request for a continuance.

The first three factors—diligence, remedy, and inconvenience—weigh in

Mr. DeJesus’s favor. Rink, 400 F.3d at 1296. As described, Mr. DeJesus

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consistently said he had not been provided with discovery, including deposition

transcripts. This shows he was diligent in trying to prepare his case. Id. Second,

the need for a continuance would have been remedied had the continuance been

granted and the deposition transcripts provided. With a continuance Mr. DeJesus

would have at least had a chance to read the depositions and make an informed

choice about whether to introduce any of the deposition testimony. See id.; cf.

Smith, 713 F.3d at 1064–65 (holding that “[u]nder the more lenient standards

afforded to pro se litigants, Smith made a sufficient showing . . . to the district

court that he was unable to present essential facts” when he told the court “he was

not provided with his deposition transcript and other evidence was not produced”).

Third, there is no evidence that granting the continuance would have

inconvenienced the Defendants. We know this was a one-day trial, which is

presumably easier to reschedule than a multi-day trial. Contra Quiet Tech. DC-8,

326 F.3d at 1351 (finding that this factor weighed against continuance when trial

lasted three weeks and rescheduling would have been a burden on the court). And,

as Mr. DeJesus points out, the Defendants have never argued they would suffer any

inconvenience as a result of a continuance. Rink, 400 F.3d at 1296.

However, Mr. DeJesus is still required to show he was prejudiced. Quiet

Tech. DC-8, 326 F.3d at 1351. The timeline enforced against Mr. DeJesus was

harsh, and reflects that his decision not to introduce deposition testimony at trial

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may not have been an informed decision. Mr. DeJesus was given an hour-and-a-

half (an hour-and-fifteen-minute lunch break and a fifteen-minute recess) to read at

least three deposition transcripts of unknown length. When he told the court he

was unable to finish reading them during those breaks, the court responded, “Well,

we need to get this done.” The court pushed Mr. DeJesus to make a decision,

telling him to rely on defense counsel’s description of the content of the

depositions, which “d[idn’t] sound good.”

Even so, on this record, we cannot say that allowing a continuance to review

discovery would have changed the jury’s verdict. See Quiet Tech. DC-8, 326 F.3d

at 1351 (finding no prejudice as the result of the denial of the continuance because

the movant’s Daubert challenge “is unavailing on its merits”); Rink, 400 F.3d at

1296 (applying and characterizing Quiet Tech. DC-8 as holding that there is no

harm “where the grant of a continuance would not have changed the disposition on

the merits”). We briefly recount the depositions of three prisoners that were not

timely provided to Mr. DeJesus.21

First, Julian Almeda originally provided an affidavit swearing that Sergeant

Lewis sexually assaulted Mr. DeJesus. However, in his deposition, Mr. Almeda

testified that Mr. DeJesus wrote the affidavit and that Almeda was not present (and

21
Although the deposition transcripts themselves are not in the record, the record
contains descriptions of some of the deponents’ testimony.

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was in fact in confinement) on the day of the incident. Mr. Almeda also testified

that Mr. DeJesus had a reputation for selling spice, which is another name for the

synthetic cannabinoids found on DeJesus. Second, Bernard Terry testified he did

not see any physical altercation but did see Sergeant Lewis try to pull something

from Mr. DeJesus’s pants. Finally, Ruben Ruiz, Mr. DeJesus’s friend, said he

never saw the act described by DeJesus, and indeed saw DeJesus try to run from

Sergeant Lewis as Lewis was giving DeJesus a command to stop.

Based on this testimony—and assuming Mr. DeJesus’s motion for a

continuance had been granted, he had been able to review each deposition, and had

chosen to introduce any of them at trial—the jury would have heard facts that

contradicted DeJesus’s story. In particular, if Mr. DeJesus introduced favorable

testimony from Mr. Ruiz, as he contemplated, the Defendants would have

introduced Mr. Almeda’s and Mr. Terry’s unfavorable testimony. Mr. Almeda’s

and Mr. Terry’s testimony would have corroborated the defense witnesses’

testimony and depicted Mr. DeJesus as not credible. It is highly unlikely that

introducing the deposition testimony would have swayed the jury to find in Mr.

DeJesus’s favor. On this record, Mr. DeJesus has not met his burden to show the

District Court abused its discretion by denying the continuance. See Quiet Tech.

DC-8, 326 F.3d at 1351.

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Although we hold that Mr. DeJesus’s challenge to the District Court’s denial

of his motion for a continuance fails, we take this opportunity to emphasize the

need to exercise care to remedy a prisoner’s inability to prepare for trial after his

attorney withdraws from the case. Cf. Griffith v. Wainwright, 772 F.2d 822, 825

& n.6 (11th Cir. 1985) (per curiam) (holding that courts should exercise “especial

care” to provide pro se prisoners with notice of summary judgment procedures “so

that any rights that such a litigant might have will not be extinguished merely

through failure to appreciate the subtleties of modern motion practice”).

B. APPOINTMENT OF COUNSEL

Next we turn to the District Court’s denials of Mr. DeJesus’s motions for

appointment of counsel. To fall within the “exceptional circumstances” warranting

appointment of counsel in a civil case, the “key is whether the pro se litigant needs

help in presenting the essential merits of his or her position to the court.” Smith,

713 F.3d at 1065 (quotation marks omitted). No single factor is dispositive, but the

totality of the circumstances may tip the balance in favor of appointing counsel.

See id. The factors include: (1) the type and complexity of the case; (2) whether

the plaintiff is capable of adequately presenting his case; (3) whether the plaintiff is

in a position to adequately investigate the case; (4) whether the evidence “will

consist in large part of conflicting testimony so as to require skill in the

presentation of evidence and in cross examination”; and (5) whether the

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appointment of counsel would be of service to the parties and the court “by

sharpening the issues in the case, shaping the examination of witnesses, and thus

shortening the trial and assisting in a just determination.” Ulmer v. Chancellor,

691 F.2d 209, 213 (5th Cir. 1982). 22 The District Court may also inquire into

whether the plaintiff has made any effort to secure private counsel. See id.

Courts have granted motions for appointed counsel when the plaintiff’s

claims are based on widespread evidence that he did not personally experience;

when there are “discovery issues,” like not being provided copies of deposition

transcripts or being prohibited from communicating with potential witnesses; or

when there is other “suspect conduct” by the defendant, such as disregarding a

court directive to provide the plaintiff with a copy of his own deposition transcript.

See Smith, 713 F.3d at 1062, 1065. Courts may also consider the plaintiff’s

capabilities of representing himself adequately, which may depend on whether “the

facts and legal issues are so novel or complex as to require the assistance of a

trained practitioner.” Cf. Fowler, 899 F.2d at 1096 (finding no exceptional

circumstances when, among other factors, the plaintiff’s claims were

“straightforward” and based on events he witnessed himself and plaintiff was “an

accomplished writ writer who was capable of representing himself adequately”).

22
This Court has adopted the Ulmer factors. See, e.g., Fowler v. Jones, 899 F.2d 1088,
1096 (11th Cir. 1990) (affirming the denial of counsel where, among other factors, “the
magistrate [judge] . . . indicated that he had properly considered the [Ulmer] factors”).

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Mr. DeJesus argues that his case presented exceptional circumstances that

warranted appointment of counsel. First, he argues that both his claims were

complex because they turned on video evidence and conflicting witness testimony.

Next, he says his incarceration made things challenging because he was housed at

a different facility than the one where the incident took place and was thus did not

have easy access to the witnesses to the incident. Third, Mr. DeJesus relies on his

longstanding mental illness, which was negatively impacted by his having to cross-

examine Sergeant Lewis, the alleged assailant. Finally, Mr. DeJesus argues he did

not have enough time to prepare for trial because his attorney withdrew two

months before trial and failed to provide him with evidence obtained in discovery.

We now address each of the exceptional-circumstances factors.

The first factor—the type and complexity of the case—splits down the

middle. See Ulmer, 691 F.2d at 213. On one hand, although Eighth Amendment

cases may often be factually complicated, this case was based on a discrete event

that occurred while Mr. DeJesus was present. On the other hand, the legal issues

related to the Eighth Amendment elements on which the jury properly should have

been instructed make this case legally complicated.

Three factors tip against Mr. DeJesus. As to the second factor, Mr. DeJesus

showed at trial that he was capable of adequately presenting his case. See id. He

cross-examined the Defendants’ witnesses, introduced documentary evidence into

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the record, and impeached witnesses with those documents. The fourth factor

about conflicting testimony, requiring skill in the presentation of evidence and in

cross-examination, also tips in favor of denying appointed counsel. See id. There

was conflicting testimony in that it was Mr. DeJesus’s word against the

eyewitness-officers’ words, but DeJesus does not argue that a lawyer skilled at

presenting evidence and cross-examination would have obtained better or different

results than he did in impeaching the officers with documentary evidence. Next,

the fifth factor tips against appointing counsel because in this case, it was not

necessary to “sharpen[] the issues in the case, shap[e] the examination of

witnesses,” or “shorten[] the trial and assist[] in a just determination.” Id. The

issues in the case were clear from the parties’ arguments; Mr. DeJesus adequately

examined witnesses; and only one day of trial was needed to examine the seven

witnesses. See id.

One factor, however, clearly weighs in favor of appointing counsel. Mr.

DeJesus was not in a position to adequately investigate and prepare for his case.

By the time Mr. DeJesus moved for appointed counsel, his former counsel had

completed several depositions but failed to give them to DeJesus. Mr. DeJesus

was not able to obtain deposition transcripts until the first day of trial, even though

he previously notified the court several times that he was not provided with

discovery. See Smith, 713 F.3d at 1064–65 (holding that prisoner’s inability to

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obtain deposition transcripts, as well as other discovery issues and “suspect

conduct” by the defendants “hindered Smith’s ability” to prepare “the essential

merits of his case” and necessitated the appointment of counsel). Mr. DeJesus’s

lack of familiarity with the discovery materials affected his ability to prepare for

trial, because he was forced to review the deposition transcripts during breaks in

between witness testimony.

Nevertheless, we conclude that the District Court did not abuse its discretion

in denying appointed counsel.

IV. CONCLUSION

For these reasons, we AFFIRM the District Court’s rulings and the order of

final judgment in favor of the Defendants.

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LUCK, Circuit Judge, concurring in the result:

The majority opinion affirms the judgment for Sgt. Willie J. Lewis because:

although the district court erred by giving the unobjected-to pattern jury instruction

for Gilberto DeJesus’s Eighth Amendment excessive force claim, the jury

instruction error was not plain because it didn’t affect the outcome of the trial; and

the district court didn’t abuse its discretion when it denied DeJesus’s motion to

continue the trial and motion for appointment of counsel. I agree that the district

court properly exercised its discretion when it denied the motions to continue and to

appoint counsel. And I agree we should affirm the judgment for Sgt. Lewis. But I

write separately because I don’t think the district court erred in giving the

unobjected-to pattern jury instruction for Eighth Amendment claims. And I don’t

think the majority opinion’s proposed instruction is consistent with our precedent.

The district court did not err in instructing
the jury on DeJesus’s Eighth Amendment claim

DeJesus alleged, and testified, that Sgt. Lewis put his finger in DeJesus’s anus.

Sgt. Lewis and his defense witnesses testified that the incident never happened; that

Sgt. Lewis never put his finger in DeJesus’s anus.

Because there was a factual dispute, the first question the jury had to answer

was whether the incident as alleged by DeJesus actually happened. Before anything

else, the jury had to decide the predicate fact of whether Sgt. Lewis put his finger in

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DeJesus’s anus. If Sgt. Lewis never did that, as he testified, then the verdict would

be for Sgt. Lewis and there would be no need to decide the other issues.

If the jury found that Sgt. Lewis put his finger in DeJesus’s anus, the next

question is whether doing so was constitutionally excessive and violated the Eighth

Amendment’s prohibition on inflicting cruel and unusual punishments. The jury

must make that call because not every finger in an inmate’s anus by a prison official

is constitutionally excessive. The jury has to distinguish “a medical professional

performing an appropriate examination,” Sconiers v. Lockhart, 946 F.3d 1256, 1266

(11th Cir. 2020), from a nurse seeking sexual gratification; “an officer executing a

permissible search,” id., from a prison official trying to humiliate an inmate.

This “core judicial inquiry” for “stating an excessive force claim” requires the

jury to determine whether the digital penetration “was carried out maliciously and

sadistically rather than as part of a good-faith effort to maintain or restore

discipline.” Wilkins v. Gaddy, 559 U.S. 34, 37, 40 (2010) (quotations omitted). The

case law—the Supreme Court’s and ours—has fleshed out the factors to consider in

deciding this core judicial inquiry.

In Wilkins, for example, the Supreme Court said that “the extent of injury

suffered by an inmate is one factor that may suggest whether the use of force could

plausibly have been thought necessary in a particular situation.” Id. at 37 (quotation

and brackets omitted). And, in Sconiers, we explained that “the extent of injury may

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shed light on the amount of force applied or ‘whether the use of force could plausibly

have been thought necessary.’” 946 F.3d at 1266 (quoting Wilkins, 559 U.S. at 37).

In that case, for example, we considered that the prison official “shoved his finger”

in the prisoner’s anus “forcefully.” Id.; see also id. (“[T]his Court has held that

severe or repetitive abuse of a prisoner by a prison official can violate the Eighth

Amendment.” (quotation omitted)).

We also, in Sconiers, considered the prison official’s intent in digitally

penetrating the prisoner’s anus. “[T]o have a valid claim on the merits of excessive

force in violation of the Eighth Amendment,” we explained, “the excessive force

must have been sadistically and maliciously applied for the very purpose of causing

harm.” Id. at 1265 (quotation and brackets omitted).

Finally, in Sconiers, we looked to the prison official’s reason for the digital

penetration and whether it had a “legitimate penological purpose.” Id. at 1266

(quotation omitted). “[A] medical professional performing an appropriate

examination or an officer executing a permissible search” is different than a prison

official “forcefully shov[ing] his finger in [the prisoner’s] unclothed anus after [the

official] had already taken [the prisoner] to the ground.” Id.

If, after considering these factors, the jury finds that the digital penetration

was constitutionally excessive under the Eighth Amendment, the jury must next find

the extent of the prisoner’s injuries (for purposes of damages) and whether the digital

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penetration caused those injuries. Importantly, the “lack of serious physical injury”

does not defeat an Eighth Amendment excessive force claim. Id. at 1267. The

excessive force claim survives even if the prisoner’s injuries were de minimis.

Wilkins, 559 U.S. at 34 (rejecting dismissal of an excessive force claim “based

entirely” on the district court’s “determination that [the] injuries were ‘de

minimis’”); see also id. at 40 (“[H]olding that the District Court erred in dismissing

Wilkins’ complaint based on the supposedly de minimis nature of his injuries . . .

.”). But “the relatively modest nature of his injuries will no doubt limit the damages

he may recover.” Id. at 40.

Applied here, the district court’s unobjected-to excessive force pattern jury

instruction was consistent with Wilkins and Sconiers. The district court instructed

the jury that, for DeJesus to succeed on his Eighth Amendment excessive force

claim, it first had to find by a preponderance of the evidence that Sgt. Lewis digitally

penetrated DeJesus’s anus. In other words, the jury had to determine whether

DeJesus’s allegations were true and whether the digital penetration actually

occurred.

If the jury found that the digital penetration actually happened, it was

instructed next to find whether the digital penetration was constitutionally

“excessive.” The district court explained that the jury must determine “whether any

force used in this case was excessive” based on the core judicial inquiry: “whether

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the force, if any, was applied in a good-faith effort to maintain or restore discipline,

or instead whether it was applied maliciously or sadistically to cause harm.” “In

making that decision” on the core judicial inquiry, the district court told the jury that

it “should consider” the Wilkins and Sconiers factors.

The jury should consider, the district court instructed, “the amount of force

used in relationship to the need presented; the motive of Sgt. Lewis; the extent of the

injury inflicted; and any effort made to temper the severity of the force used.” And

the jury was instructed to consider the legitimate penological purpose for the digital

penetration—whether Sgt. Lewis “use[d] the reasonable force that is necessary

under the circumstances to maintain order and ensure compliance with jail or prison

regulations.”

After considering the Wilkins and Sconiers factors, the jury was instructed to

find the extent of DeJesus’s injuries (for purposes of damages) and whether the

digital penetration caused his injuries. But the jury was also told that the extent of

DeJesus’s injuries didn’t matter if the digital penetration was excessive (that is, if

Sgt. Lewis “maliciously or sadistically use[d] force to cause harm”). The jury was

to award damages anyway even if DeJesus “submitted no credible evidence of

injury” or his “injuries have no monetary value.”

In sum, the Supreme Court explained in Wilkins that “to prevail” on an

excessive force claim, the prisoner “will ultimately have to prove [1] not only that

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the assault actually occurred, but also [2] that it was carried out maliciously and

sadistically rather than as part of a good-faith effort to maintain or restore

discipline.” Id. at 40 (quotation omitted and numbers added). The district court’s

unobjected-to Eighth Amendment excessive force pattern jury instruction did

exactly what the Supreme Court said in Wilkins. It first asked the jury to find

whether the digital penetration “actually occurred.” And then it asked the jury to

determine the core judicial inquiry. This was not error, plain or otherwise.

The majority opinion’s proposed jury
instruction does not follow Wilkins and Sconiers

The majority opinion affirms the judgment for Sgt. Lewis because any error

in the jury instruction did not affect the outcome of the trial. But, in order “to provide

a definition for sexual assault that can be applied to any set of facts,” Majority Op.

at 20 n.11—including cases well outside the facts of this case and involving different

allegations—the majority opinion offers its own proposed instruction for Eighth

Amendment excessive force cases.

“In order for a prisoner to meet his burden on all elements of his Eighth

Amendment claim,” the majority opinion says, “he need only show that the prison

official committed a sexual assault.” Id. at 19. That means the jury “need not

consider the amount of force applied, the extent of the injury inflicted, or any effort

the official made to temper the severity of the force used.” Id. The majority opinion

then goes on to define “sexual assault,” citing 18 U.S.C. section 2246(2), as “a sexual
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act with [a] prisoner, and that act was for the official’s own sexual gratification, or

for the purpose of humiliating, degrading, or demeaning the prisoner.” Id. at 20.

“At a minimum,” the majority opinion explains, “those sexual acts include

intentional sexualized touching underneath clothing, such as fondling or penetration;

coerced sexual activity; combinations of ongoing harassment and abuse; and

exchanges of sexual activity for special treatment or to avoid discipline.” Id.

For five reasons, the majority opinion’s proposed jury instruction is

inconsistent with Wilkins and Sconiers. First, it conflates the threshold factual issue

of whether the prisoner’s allegations actually happened with the separate

constitutional issue of whether the alleged conduct, if true, was excessive. As the

Supreme Court explained in Wilkins, whether “the assault actually occurred” and

whether “it was carried out maliciously and sadistically” are separate and distinct

issues. 559 U.S. at 40 (quotation omitted). “In order to prevail” on his Eighth

Amendment excessive force claim, the prisoner “will ultimately have to prove not

only that the assault actually occurred, but also that it was carried out maliciously

and sadistically rather than as part of a good-faith effort to maintain or restore

discipline.” Id. (emphasis added). Here, for example, Sgt. Lewis and his witnesses

denied that there was ever a finger inside DeJesus’s anus. If the prisoner doesn’t

prove by a preponderance of the evidence that the allegations actually occurred, then

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it’s unnecessary for the jury to decide the harder constitutional question of whether

the prison official’s alleged conduct was excessive under the Eighth Amendment.

The majority opinion’s proposed instruction illustrates this problem. It asks

whether Sgt. Lewis “digitally penetrated DeJesus’s anus for no legitimate

penological or medical purpose but instead for [Sgt.] Lewis’s own personal

gratification or to demean or humiliate DeJesus.” Majority Op. at 25 n.16. But this

collapses the factual question of whether the allegations actually happened with the

constitutional question of whether what happened violated the Eighth Amendment.

For cases, like this one, where the prison officials testify that they never digitally

penetrated the plaintiff, it doesn’t make sense to lump into the same jury question

the purpose of the digital penetration and the intent of the prison officials.

The majority opinion concedes that “it may be helpful” for the jury “to

consider things like . . . whether the alleged sexual assault did in fact occur,” but

only for some cases and not for others. Id. at 21–22 & n.15. But there’s no

misunderstanding: whether the alleged conduct actually occurred is not just a

helpful consideration mixed in with a bunch of other factors. And it is not optional

for a certain slice of cases. As the Supreme Court said, whether the alleged conduct

actually occurred is one of the key facts that the prisoner “will ultimately have to

prove” “[i]n order to prevail” on his excessive force claim. Wilkins, 559 U.S. at 40.

It is not a “helpful” or optional factor for the jury to consider in certain excessive

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force cases; it is part of the ultimate proof that the prisoner must present to the jury

to prevail in any excessive force case.

Second, the majority opinion’s proposed instruction reads out the core judicial

inquiry. It never asks, as Wilkins and Sconiers require the jury to answer, whether

the prison official’s conduct was “a good-faith effort to maintain or restore

discipline” or, instead, was done “maliciously and sadistically to cause harm.”

Sconiers, 946 F.3d at 1265 (quoting Wilkins, 559 U.S. at 37). The majority opinion

says that it “know[s]” the core judicial inquiry and hasn’t read it out, Majority Op.

at 23, but its proposed instruction never uses the words good-faith, malicious,

sadistic, or harm. Not once.

Third, the majority opinion’s proposed instruction disregards some of the key

factors the jury needs to consider in undertaking the core judicial inquiry. While the

proposed instruction asks the jury about the prison official’s intent, the nature of the

allegations, and whether the conduct had a legitimate penological purpose, it doesn’t

tell the jury to consider, among other factors, the amount of force applied and the

extent of the injury inflicted. This is contrary to Sconiers. There, we explained that,

even though a significant injury isn’t a necessary condition for an Eighth

Amendment excessive force claim, “the extent of injury may shed light on the

amount of force applied or ‘whether the use of force could plausibly have been

thought necessary.’” Sconiers, 946 F.3d at 1266 (quoting Wilkins, 559 U.S. at 37).

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The Sconiers court looked to the amount of force the prison official used in

determining whether the force was excessive. See id. (the prison official “force[d]

his finger into [the] inmate’s anus”); id. at 1267 (the prison official “forced his finger

into [the plaintiff]’s anus”). And the Sconiers court discussed the extent of the

prisoner’s injury that resulted from the digital penetration. See id. at 1261 (The

“digital penetration caused him anal pain for two weeks. In particular, [the plaintiff]

complained that as a result of the incident, his anus stung when he had bowel

movements, and he noticed blood on his toilet paper when he used the bathroom.”).

Despite what we said and did in Sconiers, the majority opinion explains that

we don’t need to consider these factors because “when [a] sexual assault occurs it is

necessarily constitutionally excessive in violation of the Eighth Amendment.”

Majority Op. at 25–26. Obviously, “severe or repetitive sexual abuse” of a prisoner

violates the Eighth Amendment. See Sconiers, 946 F.3d at 1266 (quotation omitted).

But this only begs the question: when is a prison official’s conduct a constitutionally

excessive sexual assault? As the majority opinion concedes, not every intentional

touching or digital penetration of a prisoner is a sexual assault. And, because not

every intentional touching or digital penetration is a sexual assault, the question is

what factors must the jury consider in distinguishing “an appropriate examination”

from a malicious one; “a permissible search” from a sadistic one. See id. Wilkins

and Sconiers tell us what those factors are. The way the search and examination

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were done, the amount of force used, and the injury they caused all “shed light” on

“‘whether the use of force could plausibly have been thought necessary.’” Id.

(quoting Wilkins, 559 U.S. at 37).

Fourth, the majority opinion’s proposed instruction defines sexual assault for

“any set of facts,” including for cases that are well beyond the facts of this case. The

proposed instruction says that a “sexual assault” is a “sexual act,” citing to 18 U.S.C.

section 2246(2), which defines “sexual act” for the federal criminal code:

As used in this chapter . . .

(2) the term “sexual act” means—

(A) contact between the penis and the vulva or the penis and the anus,
and for purposes of this subparagraph contact involving the penis
occurs upon penetration, however slight;

(B) contact between the mouth and the penis, the mouth and the vulva,
or the mouth and the anus;

(C) the penetration, however slight, of the anal or genital opening of
another by a hand or finger or by any object, with an intent to abuse,
humiliate, harass, degrade, or arouse or gratify the sexual desire of any
person; or

(D) the intentional touching, not through the clothing, of the genitalia
of another person who has not attained the age of [sixteen] years with
an intent to abuse, humiliate, harass, degrade, or arouse or gratify the
sexual desire of any person . . . .

18 U.S.C. § 2246(2). The proposed instruction also says that, “[a]t a minimum,”

sexual assault includes “intentional sexualized touching underneath clothing,”

“coerced sexual activity,” “combinations of ongoing harassment and abuse,” and
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“exchanges of sexual activity for special treatment or to avoid discipline.” Majority

Op. at 20. But there are a host of problems with defining the scope of an Eighth

Amendment excessive force claim with these examples and section 2246(2):

• To the extent the majority opinion uses section 2246(2) to define an

excessive force claim under the Eighth Amendment, the proposed

instruction turns this criminal statute into a private cause of action.

Essentially, any violation of section 2246(2) would “necessarily”

violate the Eighth Amendment. Majority Op. at 20. But criminal

statutes rarely create private causes of action. See Cent. Bank of

Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164,

190 (1994) (“We have been quite reluctant to infer a private right of

action from a criminal prohibition alone . . . . [W]e[’ve] refused to infer

a private right of action from a bare criminal statute. And we have not

suggested that a private right of action exists for all injuries caused by

violations of criminal prohibitions.” (citation and quotation marks

omitted)); Chrysler Corp. v. Brown, 441 U.S. 281, 316 (1979) (“[T]his

Court has rarely implied a private right of action under a criminal

statute, and where it has done so ‘there was at least a statutory basis for

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inferring that a civil cause of action of some sort lay in favor of

someone.’” (footnote omitted)). 1

• The proposed instruction, by using section 2246(2) and “intentional

sexualized touching” to define sexual assault, would turn consensual

sexual acts with a prisoner into a constitutional violation. While

consensual sexual acts between prisoners and prison officials are never

appropriate, it isn’t clear that they necessarily violate the Eighth

Amendment’s prohibition on the infliction of cruel and unusual

punishments. See, e.g., Brown v. Flowers, 974 F.3d 1178, 1183 (10th

Cir. 2020) (“In Graham, we determined that guards who had sex with

an inmate did not violate her constitutional rights because there was

‘overwhelming evidence of consent.’” (citation omitted)); Freitas v.

Ault, 109 F.3d 1335, 1339 (8th Cir. 1997) (“[W]e hold that . . . welcome

and voluntary sexual interactions, no matter how inappropriate, cannot

as a matter of law constitute ‘pain’ as contemplated by the Eighth

Amendment.”); Fisher v. Goord, 981 F. Supp. 140, 174 (W.D.N.Y.

1
Child victims of sexual assault, as defined in the proposed instruction, may have a private
cause of action under 18 U.S.C. section 2255(a). But the fact that Congress created a private cause
of action for child victims of sexual assault strongly suggests that non-child victims like DeJesus
do not have a private cause of action for section 2246(2) violations. See In re Wild, 994 F.3d 1244,
1260 (11th Cir. 2021) (en banc) (“Congress knows how to give crime victims a private cause of
action when it wants to. Had it intended to do so in the [Crime Victims’ Rights Act], it presumably
would have enacted some provision that resembles [section] 2255. It didn’t even come close, and
its ‘silence’ in that respect ‘is controlling.’” (citation omitted)).
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1997) (“[C]onsensual sexual interactions between a correction officer

and an inmate, although unquestionably inappropriate, and in this

Court’s view despicable, do not constitute cruel and unusual

punishment under the Eighth Amendment.”); see also Wood v.

Beauclair, 692 F.3d 1041, 1048 (9th Cir. 2012) (“While we understand

the reasons behind a per se rule that would make prisoners incapable of

legally consenting to sexual relationships with prison officials, we are

concerned about the implications of removing consent as a defense for

Eighth Amendment claims.”).

• The proposed instruction would turn non-severe or isolated acts, like a

one-time slight touching, into sexual assaults in violation of the Eighth

Amendment. While a one-time slight touching is not appropriate,

Sconiers “held that ‘severe or repetitive sexual abuse of a prisoner by a

prison official can violate the Eighth Amendment.’” 946 F.3d at 1266

(emphasis added) (quoting Boxer X v. Harris, 437 F.3d 1107, 1111

(11th Cir. 2006), abrogated in part by Wilkins, 559 U.S. at 39); id. at

1267 (“Boxer X’s holding that severe or repetitive sexual abuse of a

prisoner by a prison official can violate the Eighth Amendment,

remains good law . . . .”). And in Boxer X, we “join[ed] other circuits

recognizing that severe or repetitive sexual abuse of a prisoner by a

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prison official can violate the Eighth Amendment.” 437 F.3d at 1111

(emphasis added).

• The proposed instruction turns every intentional sexualized touching,

and even non-sexual abuse and harassment, into a sexual assault in

violation of the Cruel and Unusual Punishments Clause without fully

analyzing how the Supreme Court defines the “evolving standards of

decency that mark the progress of a maturing society.” Graham v.

Florida, 560 U.S. 48, 58 (2010) (quotation omitted); see also Hudson v.

McMillian, 503 U.S. 1, 9 (1992) (explaining, in the context of a

prisoner’s excessive force claim, that “the objective component of an

Eighth Amendment claim” is “contextual and responsive to

contemporary standards of decency.” (citation and quotation marks

omitted)). The majority opinion doesn’t “determine whether there is

national consensus,” “as expressed in legislative enactments and state

practice,” criminalizing each subsection of section 2246(2) and each

example that it says are, at minimum, a sexual assault. See Graham,

560 U.S. at 61 (citation omitted). Instead, the majority opinion merely

cites to a part of the Sconiers concurring opinion that was not adopted

by the court. Majority Op. at 18, 20 n.13. And even the unadopted

concurring opinion only said that there was a consensus “that sexual

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abuse of prisoners by prison guards, such as the type [the plaintiff]

alleges, seriously violates ‘contemporary standards of decency.’”

Sconiers, 946 F.3d at 1271 (Rosenbaum, J., concurring). The prison

official in Sconiers forcefully shoved his finger inside the prisoner’s

anus, after taking the prisoner down, for no legitimate penological

reason. Id. at 1266 (majority opinion). That was the type of sexual

abuse alleged by the Sconiers plaintiff that violated contemporary

standards of decency. But the majority opinion’s proposed instruction

defines sexual assault to include consensual touching, non-severe and

non-repetitive touching, and even no-touching-at-all, which are well

beyond the consensus mentioned by the Sconiers concurring opinion.

• As for the majority opinion’s reliance on section 2246(2) as support for

an objective national consensus, the Supreme Court has rejected the

argument that federal law represents a national consensus defining the

limits of the Eighth Amendment. See Graham, 560 U.S. at 62 (rejecting

as “incomplete and unavailing” the argument that there was “no

national consensus against” sentencing juveniles to life without parole

because “[f]ederal law also allows for the possibility of life without

parole for offenders as young as [thirteen]”). And the majority opinion

doesn’t analyze “the standards elaborated by controlling precedents and

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by the Supreme Court’s own understanding and interpretation of the

Eighth Amendment’s text, history, meaning, and purpose” to

“determine in the exercise of its own independent judgment whether”

violating each of section 2246(2)’s four subsections, and each example

it gives of sexual assault, “violates the Constitution.” See id. at 61–62

(quotations omitted).

Fifth and finally, the majority opinion argues that “it is necessary to provide

a definition for sexual assault that can be applied to any set of facts.” Majority Op.

at 20 n.11. But deciding the Eighth Amendment’s scope for all excessive force cases

and “any set of facts,” even for cases and facts that have nothing to do with this case,

is not necessary. See Burns v. Town of Palm Beach, 999 F.3d 1317, 1348 (11th Cir.

2021) (“Generally, we don’t answer constitutional questions that don’t need to be

answered.”). And the majority opinion’s all-encompassing definition is not all-

encompassing. As the majority opinion concedes, the proposed instruction’s

definition of “sexual assault” does not apply to any set of facts because a “broader

range of conduct” outside its definition “certainly qualifies as sexual assault.”

Majority Op. at 21. “[T]his may include conduct that does not require any physical

contact with a prisoner,” id. at 21 n.14, and “[s]ome clothed sexualized touching,”

id. at 20 n.12. The majority opinion doesn’t say what this other conduct is but, it

assures us, jurors will know it when they see it. Id. at 21. Because, as the majority

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opinion explains, excessive force claims are uniquely “depend[ent] on the facts of a

given situation,” id., and cannot be so neatly and easily defined, that’s one more

reason why we shouldn’t adopt the proposed instruction. It muddies the waters more

than it clears them up; it confuses more than it clarifies.

* * * *

The majority opinion’s proposed instruction is inconsistent with Wilkins and

Sconiers. It conflates the threshold factual issue of whether the prisoner’s

allegations actually occurred with the separate constitutional issue of whether the

alleged conduct, if true, was excessive. It reads out the core judicial inquiry and

some of the key factors used to decide whether a prison official’s conduct is

constitutionally excessive. And it expands excessive force claims well beyond the

facts of this case and the controlling precedent interpreting the Eighth Amendment.

I wouldn’t adopt it.

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