Bearchild v. Cobban

Citation947 F.3d 1130
Decision Date16 January 2020
Docket NumberNo. 17-35616,17-35616
Parties Dewayne BEARCHILD, Plaintiff-Appellant, v. Kristy COBBAN; Pasha, Sgt.; Sam Jovanovich; Tom Blaz; Dan Johnson; Shashlinge, C/o; Bruno, C/O; MacDonald, Sgt.; Denise Deyott, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

947 F.3d 1130

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

No. 17-35616

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 12, 2019 Seattle, Washington
Filed January 16, 2020

CHRISTEN, Circuit Judge:

Dewayne Bearchild, an inmate at the Montana State Prison (MSP), sued several prison staff members pursuant to 42 U.S.C. § 1983, alleging that his Eighth Amendment rights were violated when he was sexually assaulted during the course of a pat-down search. The district court dismissed all defendants except Sergeant Larry Pasha, the prison guard Bearchild accuses of converting the pat-down into a sexual assault. After the trial court denied Pasha summary judgment on his qualified immunity defense, Bearchild tried his case to a six-member jury, pro se . The jury returned a verdict in Pasha’s favor. With the assistance of pro bono counsel, Bearchild appeals two claimed trial errors: (1) the failure to grant a continuance to allow him to subpoena a key witness; and (2) jury instructions that inaccurately explained the substantive elements of his Eighth Amendment claim.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We first conclude that the district court did not abuse its discretion by failing to continue Bearchild’s trial sua

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sponte . With respect to the challenged jury instructions, we recognize that there is no model jury instruction for Eighth Amendment sexual assault, and we take this opportunity to address our circuit’s law governing this type of claim. The model instructions plainly misstate the law applicable to Bearchild’s case. Because it is impossible to determine whether the jury would have reached the same result had it been properly instructed, we reverse the district court’s judgment and remand for a new trial.


On the morning of November 4, 2013, Bearchild and several other MSP inmates walked from their housing unit to a general equivalency degree (GED) class located in a different part of the prison. Along the way, guards stopped Bearchild and a fellow inmate to conduct pat-down searches of both men. Bearchild alleges that Pasha’s pat-down lasted about five minutes and involved rubbing, stroking, squeezing, and groping in intimate areas. Bearchild claims that Pasha then ordered him to pull his waistband away from his body, stared at his penis, and asked, "Is that all of you?" According to Bearchild, Pasha and the other guards who observed the search began laughing. James Ball, another MSP inmate who was present, testified at trial and provided an account that was generally consistent with Bearchild’s version of events. Ball also testified that, after watching the first part of Pasha’s search, he told guards "that’s not right," and was then "told to shut up." Bearchild testified that Pasha started the pat-down from behind him but then moved in front of him. On cross-examination, Ball testified that the pat-down began with Pasha behind Bearchild. He was not asked whether Pasha ever walked around to the front of Bearchild’s body.

Pasha vigorously disputed Bearchild’s characterization of the search and denied that it lasted five minutes and that it transgressed the boundaries of a permissible pat-down. At trial, Pasha presented witnesses who explained that maintaining institutional security requires invasive procedures, particularly because inmates often hide contraband in intimate areas knowing that officers may be reluctant to look in those places. As part of his testimony, Pasha demonstrated the scope of the search he claimed to have conducted using another prison employee as a stand-in for Bearchild.

It is undisputed that Sara Simmons, the inmates’ GED teacher, observed the first part of the search, but she did not testify at trial. Simmons gave two written statements: one to investigators, and one directly to Bearchild to use in his administrative grievance. In each, she explained that her view was limited, that she observed Pasha ask Bearchild to pull his pants away from his waist, and that eventually she left the scene until the search was completed. Both of Simmons’s statements noted that Bearchild seemed upset when she rejoined him immediately following his encounter with Pasha and that he told Simmons the search was "not right." Bearchild asserts that Simmons asked Pasha if he was "for real" during the search, but neither of Simmons’s statements reflect that she said anything to any of the guards. Bearchild listed one of Simmons’s statements as a "will-offer" exhibit for trial, but he never attempted to introduce either statement into evidence.


We limit our review of the procedural history to the relevant events at trial, which began on July 11, 2017. The district court began by asking Bearchild whether he intended to present any witnesses because it appeared he had not requested any subpoenas. Bearchild, apparently surprised,

947 F.3d 1136

responded that he had requested subpoenas for several witnesses more than two months earlier, and he showed the court a copy of a subpoena request he prepared that was dated May 3, 2017. During the ensuing colloquy, the State produced prison mailroom records that did not reflect any outgoing legal mail from Bearchild on any date on or around May 3. Bearchild explained that he consistently had difficulty using the prison mail system and that his legal mail often failed to reach its intended destination. Adding to the confusion, a bag of legal mail had been stolen from a local post office in June 2017.1

The district court recognized that Bearchild was pro se , and expressed frustration that the failure to subpoena witnesses left no good alternatives for getting the trial started on time. The court weighed the fact that "[w]e’re here, ready for trial" against the fact that "Mr. Bearchild doesn’t have any witnesses," and observed that "everybody would like" to "proceed with trial[.]" Ultimately, the court docketed Bearchild’s subpoena request, and required that the State make two inmate witnesses available to testify by video. The court denied Bearchild’s request to issue a subpoena for Sara Simmons, explaining that Bearchild had not provided an address where she could be served and that he had not paid the statutory witness fee. Bearchild did not object to this ruling or ask for a continuance of the trial to subpoena Simmons. He only objected to the district court’s decision to exclude a third inmate’s written statement as hearsay. The exclusion of the third prisoner’s testimony is not challenged on appeal.

The trial lasted two days. The district court held a conference to discuss proposed jury instructions on the second day, before Pasha rested his defense case. Four instructions are relevant to this appeal: Instructions 10, 11, 12, and 13.

Instruction No. 10 explained § 1983 ’s causation requirement in broad strokes, drawing on Ninth Circuit Model Civil Jury Instruction 9.2.2 Instruction No. 11 explained the general elements of a § 1983 cause of action, directing the jury that Bearchild had the burden of proving Pasha "acted under color of state law" and that his actions "deprived the plaintiff of his particular rights under the United States Constitution as explained in later instructions." This instruction also explained that the parties had stipulated that Pasha acted under color of law and directed the jury that its verdict should be for Bearchild if it found the elements in Instructions 11 and 12 satisfied.

Instruction No. 12 was a more detailed statement of the substantive law pertaining to an Eighth Amendment excessive force claim, relying almost verbatim on Ninth Circuit Model Civil Jury Instruction 9.26.3 It provided, in relevant part:

Under the Eighth Amendment, a convicted prisoner has the right to be free
947 F.3d 1137
from "cruel and unusual punishments." In order to prove the defendant deprived the plaintiff of this Eighth Amendment right, the plaintiff must prove the following elements by a preponderance of the evidence:

1. the defendant used excessive and unnecessary force under all of the circumstances;

2. the defendant acted maliciously and sadistically for the purpose of causing harm, and not in a good faith effort to maintain or restore discipline; and

3. the act of the defendant caused harm to the plaintiff.

Instruction No. 12 went on:

In determining whether these three elements have been met in this case, consider the following factors:

1) the extent of the injury suffered;

2) the need to use force;

3) the relationship between the need to use force and the amount of force used;

4) any threat reasonably perceived by the defendant; and

5) any efforts made to temper the severity of a forceful response, such as, if feasible, providing a prior warning or giving an order to comply[.]

In considering these factors, you should give deference to prison officials in the adoption and execution of policies and practices that in their judgment are needed to preserve discipline and to maintain internal security in a prison.

Finally, Instruction No. 13 provided one of several definitions of sexual abuse taken from the Prison Rape Elimination Act’s (PREA)...

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