by David M. Reutter

The U.S. Court of Appeals for the Eleventh Circuit has decided that when a prisoner alleges sexual assault by a prison official, the only fact he needs to prove is whether the sexual assault occurred and not that it was also carried out with excessive force and malicious intent. But while finding a district court in Florida erred in giving a jury that instruction, the Court ruled the error was harmless in this case and denied the prisoner plaintiff relief.

In its opinion issued on September 21, 2021, the Court ruled on an appeal brought by Florida prisoner Gilberto DeJesus, who alleged that while incarcerated at South Bay Correctional Facility on February 4, 2016, Sgt. Willie J. Lewis pulled him out of line, made a comment about his filing grievances, and then pulled the elastic from the back of his pants and said, “You have a nice ass.” When DeJesus pulled away, Lewis allegedly “body slammed him to the ground,” handcuffed him and digitally penetrated his anus.

With the aid of Tallahassee attorney Gary Lee Printy, DeJesus filed suit in U.S. District Court for the Southern District of Florida, alleging violation of his Eighth Amendment right to be free of cruel and unusual punishment. He also brought a First Amendment denial-of-access-to-courts claim against Inspector Christopher Castner for allegedly threatening him with a transfer if he did not drop his allegation against Lewis.

Just before trial, Printy withdrew, doubting DeJesus’ creditability. For one thing, he explained, a fellow prisoner who had corroborated DeJesus’ version of events had recanted and was now corroborating what Lewis said— that he saw DeJesus obtain a plastic bag from another prisoner and stuff it in his waistband, after which, once DeJesus was on the ground, the bag was clearly visible and retrieved from the crack between his butt cheeks. Inside the bag, it was later determined, was “spice” or synthetic marijuana. The prisoner who switched sides added that DeJesus was a reputed “spice” dealer.

DeJesus, proceeding then pro se, watched as Lewis then denied the allegation against him. So did two prison inspectors who were present. Unsurprisingly, the jury found for Defendants.

A New Pattern Jury Instruction

DeJesus appealed, raising three issues. First, he said the district court erred in refusing to grant a continuance after his counsel withdrew so shortly before trial. Another issue was the failure to appoint new counsel. A third was the jury instruction that DeJesus had the burden of proving not only sexual assault but also excessive force and malicious intent.

The Eleventh Circuit found no error in the first two rulings, but it did in the third. The Court noted that the issue was governed by its ruling in Sconiers v. Lockhart, 946 F.3d 1256 (11th Cir. 2020), in which it laid out four principles that apply to cases involving a prisoner alleging sexual abuse.

First, unlike typical use-of-force cases, sexual assault can never serve any valid penological purpose.

Second, sexual assault is a “malicious and sadistic” act that satisfies the subjective component of an Eighth Amendment claim.

Third, sexual assault is never acceptable under contemporary standards of decency, which matters for purposes of satisfying the objective component of such a claim.

Finally, courts look to the “nature” of the force used, and harm from a sexual assault is inherently not de minimus.

The only conclusion to draw from those principles, the Court said, is that when accusing a prison official of sexual assault, a prisoner “need only show that the prison official committed” the act in order to sustain an Eighth Amendment violation. So “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.”

Sconiers held that “forceful digital penetration of the prisoner’s anus clearly met the objective and subjective components of an Eighth Amendment claim,” but it left open the question of what other types of conduct qualify as sexual assault.

Here the Eleventh Circuit answered that question by holding that “‘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 purposes of humiliating, degrading, or demeaning the prisoner.”

Referencing 18 U.S.C. § 2246(2), the Court said that “[a]t a minimum, those sexual acts include 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.”

Having found error in the district court’s jury instruction, however, the Court ruled it was not prejudicial because the evidence supported the finding that no sexual assault occurred. And though “[w]ith 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,” that error was also not reversible because DeJesus’ claim was dismissed without prejudice. Declining to appoint him counsel was also not an error, the Court said.

Thus the district court’s judgment was affirmed.

Concurring in that, Judge Robert J. Luck nevertheless took issue with the majority’s new pattern jury instruction for sexual assault claims, writing at length that removing consideration of excessive force or extent of injury was inconsistent with Sconiers, as well as the U.S. Supreme Court’s ruling in Wilkins v. Gaddy, 559 U.S. 34, 130 S. Ct. 1175 (2010).

In the former, he noted, the prisoner alleged that a guard’s “digital penetration caused him anal pain for two weeks,” while in the latter case, a district court was faulted for failing to ask whether a prisoner’s injuries were inflicted in a “good-faith effort to maintain or restore discipline.” See: DeJesus v. Lewis, 14 F.4th. 1182 (11^th Cir. 2021). 

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