                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


DEWAYNE BEARCHILD,                        No. 17-35616
             Plaintiff-Appellant,
                                             D.C. No.
                 v.                       6:14-cv-00012-
                                               DLC
KRISTY COBBAN; PASHA, Sgt.; SAM
JOVANOVICH; TOM BLAZ; DAN
JOHNSON; SHASHLINGE, C/O;                   OPINION
BRUNO, C/O; MACDONALD, Sgt.;
DENISE DEYOTT,
            Defendants-Appellees.


     Appeal from the United States District Court
              for the District of Montana
  Dana L. Christensen, Chief District Judge, Presiding

          Argued and Submitted April 12, 2019
                  Seattle, Washington

                 Filed January 16, 2020

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

               Opinion by Judge Christen;
Partial Concurrence and Partial Dissent by Judge Callahan
2                     BEARCHILD V. COBBAN

                            SUMMARY*


                       Prisoner Civil Rights

    The panel affirmed in part and reversed in part the district
court’s judgment in favor of defendant prison officials,
entered following a jury trial, in an action brought pursuant
to 42 U.S.C. § 1983 by an inmate at the Montana State Prison
who alleged that his Eighth Amendment rights were violated
when he was sexually assaulted during the course of a pat-
down search.

   Plaintiff alleged two trial errors: (1) the failure to grant a
continuance to allow him to subpoena a key witness; and
(2) jury instructions that inaccurately explained the
substantive elements of his Eighth Amendment claim.

    The panel first held that the district court did not abuse its
discretion by failing to continue plaintiff’s trial sua sponte to
allow plaintiff to subpoena a potential witness. The panel
concluded that because the record showed that plaintiff’s
right to present his case was not substantially affected by the
lack of a continuance, the district court’s decision was not
arbitrary or unreasonable.

    With respect to the challenged jury instructions, the panel
recognized that there was no model jury instruction for
Eighth Amendment sexual assault, and the panel took the
opportunity to address this Circuit’s law governing this type
of claim. The panel held that a prisoner presents a viable

    *
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                   BEARCHILD V. COBBAN                       3

Eighth Amendment sexual assault claim where he or she
proves that a prison staff member, acting under color of law
and without legitimate penological justification, touched the
prisoner in a sexual manner or otherwise engaged in sexual
conduct for the staff member’s own sexual gratification, or
for the purpose of humiliating, degrading, or demeaning the
prisoner. The panel held that this definition recognized that
there are occasions when legitimate penological objectives
within a prison setting require invasive searches. It also
accounts for the significant deference courts owe to prison
staff, who work in challenging institutional settings with
unique security concerns.

    The panel held that jury instruction No. 12, which set out
the substantive law of plaintiff’s Eighth Amendment claim,
and which relied almost verbatim on Ninth Circuit Model
Civil Jury Instruction 9.26, misstated the elements necessary
to establish liability for an Eighth Amendment violation
arising from sexual assault. The panel further held that it was
impossible to determine whether the jury would have reached
the same result had it been properly instructed. The panel
therefore reversed the district court’s judgment and remanded
for a new trial with appropriate jury instructions on the
substantive law applicable to plaintiff’s claim. Because the
panel remanded for a new trial, it also analyzed Instruction
No. 10, based on Ninth Circuit Model Civil Jury Instruction
9.2, and concluded that the instruction did not inaccurately
state the law with respect to plaintiff’s burden of persuasion
on causation.

    Concurring in part and dissenting in part, Judge Callahan
agreed with the majority’s conclusion that the district court’s
decision not to continue the trial sua sponte was within its
broad discretion and was not arbitrary or unreasonable.
4                   BEARCHILD V. COBBAN

However, Judge Callahan stated that the district court’s use
of the Ninth Circuit’s model jury instruction for Eighth
Amendment excessive force claims, if error, was not plain
error warranting a new trial, particularly in light of the district
court’s additional instruction defining “sexual abuse” in a
manner well-tailored to the facts of the case.


                          COUNSEL

Kathryn Cherry (argued), Gibson Dunn & Crutcher LLP,
Dallas, Texas; Theodore J. Boutrous Jr., Gibson Dunn &
Crutcher LLP, Los Angeles, California; Caitlin J. Halligan
and Andrew C. Bernstein, Gibson Dunn & Crutcher LLP,
New York, New York; for Plaintiff-Appellant.

Kirsten K. Madsen (argued), Assistant Attorney General,
Agency Legal Services Bureau, Montana Department of
Justice, Helena, Montana, for Defendants-Appellees.


                           OPINION

CHRISTEN, Circuit Judge:

    Dewayne Bearchild, an inmate at the Montana State
Prison (MSP), sued several prison staff members pursuant to
42 U.S.C. § 1983, alleging that his Eighth Amendment rights
were violated when he was sexually assaulted during the
course of a pat-down search. The district court dismissed all
defendants except Sergeant Larry Pasha, the prison guard
Bearchild accuses of converting the pat-down into a sexual
assault. After the trial court denied Pasha summary judgment
on his qualified immunity defense, Bearchild tried his case to
                   BEARCHILD V. COBBAN                       5

a six-member jury, pro se. The jury returned a verdict in
Pasha’s favor. With the assistance of pro bono counsel,
Bearchild appeals two claimed trial errors: (1) the failure to
grant a continuance to allow him to subpoena a key witness;
and (2) jury instructions that inaccurately explained the
substantive elements of his Eighth Amendment claim.

     We have jurisdiction pursuant to 28 U.S.C. § 1291. We
first conclude that the district court did not abuse its
discretion by failing to continue Bearchild’s trial sua sponte.
With respect to the challenged jury instructions, we recognize
that there is no model jury instruction for Eighth Amendment
sexual assault, and we take this opportunity to address our
circuit’s law governing this type of claim. The model
instructions plainly misstate the law applicable to Bearchild’s
case. Because it is impossible to determine whether the jury
would have reached the same result had it been properly
instructed, we reverse the district court’s judgment and
remand for a new trial.

                              I.

    On the morning of November 4, 2013, Bearchild and
several other MSP inmates walked from their housing unit to
a general equivalency degree (GED) class located in a
different part of the prison. Along the way, guards stopped
Bearchild and a fellow inmate to conduct pat-down searches
of both men. Bearchild alleges that Pasha’s pat-down lasted
about five minutes and involved rubbing, stroking, squeezing,
and groping in intimate areas. Bearchild claims that Pasha
then ordered him to pull his waistband away from his body,
stared at his penis, and asked, “Is that all of you?” According
to Bearchild, Pasha and the other guards who observed the
search began laughing. James Ball, another MSP inmate who
6                  BEARCHILD V. COBBAN

was present, testified at trial and provided an account that was
generally consistent with Bearchild’s version of events. Ball
also testified that, after watching the first part of Pasha’s
search, he told guards “that’s not right,” and was then “told
to shut up.” Bearchild testified that Pasha started the pat-
down from behind him but then moved in front of him. On
cross-examination, Ball testified that the pat-down began with
Pasha behind Bearchild. He was not asked whether Pasha
ever walked around to the front of Bearchild’s body.

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

    It is undisputed that Sara Simmons, the inmates’ GED
teacher, observed the first part of the search, but she did not
testify at trial. Simmons gave two written statements: one to
investigators, and one directly to Bearchild to use in his
administrative grievance. In each, she explained that her
view was limited, that she observed Pasha ask Bearchild to
pull his pants away from his waist, and that eventually she
left the scene until the search was completed. Both of
Simmons’s statements noted that Bearchild seemed upset
when she rejoined him immediately following his encounter
with Pasha and that he told Simmons the search was “not
right.” Bearchild asserts that Simmons asked Pasha if he was
                        BEARCHILD V. COBBAN                                    7

“for real” during the search, but neither of Simmons’s
statements reflect that she said anything to any of the guards.
Bearchild listed one of Simmons’s statements as a “will-
offer” exhibit for trial, but he never attempted to introduce
either statement into evidence.

                                      II.

    We limit our review of the procedural history to the
relevant events at trial, which began on July 11, 2017. The
district court began by asking Bearchild whether he intended
to present any witnesses because it appeared he had not
requested any subpoenas. Bearchild, apparently surprised,
responded that he had requested subpoenas for several
witnesses more than two months earlier, and he showed the
court a copy of a subpoena request he prepared that was dated
May 3, 2017. During the ensuing colloquy, the State
produced prison mailroom records that did not reflect any
outgoing legal mail from Bearchild on any date on or around
May 3. Bearchild explained that he consistently had
difficulty using the prison mail system and that his legal mail
often failed to reach its intended destination. Adding to the
confusion, a bag of legal mail had been stolen from a local
post office in June 2017.1


     1
       After the theft was discovered, the district court sent the parties a list
of the documents in the court’s file as of June 20, 2017. The court ordered
Bearchild to re-file any documents that did not appear on the list. The list
did not show any subpoena requests. Bearchild hand-filed a written
response on July 11, 2017, at the final pre-trial conference held on the
morning of the first day of trial. He informed the court that he received
the court’s notification on July 5, 2017, more than two weeks after the
district court issued it. Bearchild’s July 11 filing asserted a generalized
complaint with respect to his ability to send and receive legal documents
from MSP, but it did not contend that any documents were missing from
8                      BEARCHILD V. COBBAN

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

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

   Instruction No. 10 explained § 1983’s causation
requirement in broad strokes, drawing on Ninth Circuit
Model Civil Jury Instruction 9.2.2 Instruction No. 11


the district court’s file and it expressed Bearchild’s desire to proceed with
trial.
     2
       Ninth Circuit Jury Instructions Comm., Manual of Model Civil Jury
Instructions, at 122 (2017).
                      BEARCHILD V. COBBAN                    9

explained the general elements of a § 1983 cause of action,
directing the jury that Bearchild had the burden of proving
Pasha “acted under color of state law” and that his actions
“deprived the plaintiff of his particular rights under the
United States Constitution as explained in later instructions.”
This instruction also explained that the parties had stipulated
that Pasha acted under color of law and directed the jury that
its verdict should be for Bearchild if it found the elements in
Instructions 11 and 12 satisfied.

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

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

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

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

   3
       Manual of Model Civil Jury Instructions, at 192.
10                BEARCHILD V. COBBAN

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

Instruction No. 12 went on:

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

           1) the extent of the injury suffered;

           2) the need to use force;

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

           4) any threat reasonably perceived by the
              defendant; and

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

           In considering these factors, you should
       give deference to prison officials in the
       adoption and execution of policies and
       practices that in their judgment are needed to
       preserve discipline and to maintain internal
       security in a prison.
                       BEARCHILD V. COBBAN                              11

Finally, Instruction No. 13 provided one of several definitions
of sexual abuse taken from the Prison Rape Elimination Act’s
(PREA) implementing regulations. See 28 C.F.R. § 115.6.4
Pasha requested Instruction No. 13 to provide context for
several PREA investigation reports detailing similar
allegations against Pasha lodged by other MSP inmates.
Bearchild proffered these reports as exhibits and the district
court admitted eight of them, under seal and over Pasha’s
repeated objections, because it concluded they were public
records and not precluded by Fed. R. Evid. 404(b).
Instruction No. 13 identified conduct that constitutes “sexual
abuse” for purposes of the Prison Rape Elimination Act:
“intentional contact, either directly or through the clothing of
or with the genitalia, anus, groin, breast, inner thigh, or the
buttocks that is unrelated to official duties or where the staff
member has the intent to abuse, arouse, or gratify sexual
desire.”

    Bearchild did not object to any of these instructions,
either at the time of the conference or when the district court
read the instructions to the jury. But the district court
expressed some concern with Pasha’s proposed version of

    4
       Congress enacted the PREA in 2003 by unanimous consent to
“establish a zero-tolerance standard for the incidence of prison rape in the
United States” and to “make the prevention of prison rape a top priority
in each prison system[.]” 34 U.S.C. § 30302(1)–(2). The Act directed the
Attorney General to “publish a final rule adopting national standards for
the detection, prevention, reduction, and punishment of prison rape.” Id.
§ 30307(a)(1). The rule established standards for investigating and
responding to allegations of sexual abuse committed against prison
inmates. 28 C.F.R. §§ 115.61–68, 115.71–73. When an investigation
substantiates allegations of sexual abuse committed by prison staff, the
presumptive disciplinary measure is termination; for sexual abuse
committed by inmates, the rule provides for disciplinary sanctions.
28 C.F.R. §§ 115.76, 115.78.
12                BEARCHILD V. COBBAN

Instruction No. 10, remarking that the proposed causation
language was “a little bit confusing.” Pasha asserted that the
instruction was appropriate because causation is a required
element in any § 1983 claim, but he accepted a minor
clarification suggested by the district court. There were no
other substantive discussions of any of the four pertinent
instructions before the district court charged the jury.

    As explained, the jury returned a defense verdict and
Bearchild appeals two discrete issues. He asserts that the
district court should have ordered a continuance of the trial
sua sponte to allow time for him to subpoena Simmons. He
also argues that Instructions 10 and 12 were legally erroneous
and that he was prejudiced by their misstatements of law.
Bearchild asks that we order a new trial. We address each of
his arguments in turn.

                             III.

    We first consider whether the district court abused its
discretion by failing to order a continuance sua sponte.
Bearchild listed eight witnesses and fifteen adverse witnesses
in the subpoena request he provided to the district court on
the first day of trial. Of the requested eight non-adverse
witnesses, seven were fellow inmates, two of whom
witnessed the pat-down. Sara Simmons, Bearchild’s GED
teacher who was also present during part of the search and
provided two written statements in the aftermath, was the
eighth non-adverse witness. Bearchild contends on appeal
that Simmons was his key witness because she was the only
non-prisoner and non-guard who observed Pasha’s search.
He argues that the importance of her testimony was
underscored when the jury asked about her absence from trial
                      BEARCHILD V. COBBAN                            13

during deliberations.5 Given Simmons’s vital role in his case
and his own status as an incarcerated pro se litigant,
Bearchild argues that the district court abused its discretion
by not granting him time to cure his noncompliance with
statutory service and witness fee requirements. Pasha
counters that, at trial, Bearchild downplayed Simmons’s
importance and stressed the importance of Ball’s eyewitness
testimony, which was presented by video. Pasha also points
out that Bearchild could have introduced Simmons’s written
statement because it was disclosed on his exhibit list, and
Pasha did not object to it.6

    A district court’s decision to grant or deny a continuance
is reviewed for a “clear abuse of . . . discretion.” United
States v. Kloehn, 620 F.3d 1122, 1126–27 (9th Cir. 2010)
(quoting United States v. Flynt, 756 F.2d 1352, 1358 (9th Cir.
1985)). We ask whether, in view of all the surrounding
circumstances, a district court’s decision not to grant a
requested continuance was “arbitrary or unreasonable.” Id.
at 1127 (quoting Flynt, 756 F.2d at 1358).

    To answer this question, we apply four factors first
outlined in Flynt, including the movant’s diligence in
preparing for trial, whether a continuance would have
achieved the movant’s purpose, the inconvenience of a


    5
       The jury’s written question asked: “Why was the statement of the
GED teacher not presented in evidence? And/or why did [she] not
testify?”
    6
       District of Montana Local Rule 16.4(e) requires parties to prepare
exhibit lists that include objections raised by an opposing party. The
district court’s final pretrial order reminded all of the parties in
Bearchild’s case that “objections to exhibits are waived if they are not
disclosed on the opposing party’s exhibit list.”
14                 BEARCHILD V. COBBAN

continuance to the court and non-moving party, and any
resulting prejudice the movant may have suffered as a result
of the denial. See 756 F.2d at 1359. Although we may assign
varying weight to the first three of these factors depending on
the circumstances, the last factor—prejudice resulting from
the denial—is required before error will be assigned to the
failure to grant a continuance. See Kloehn, 620 F.3d at 1127
(citing Armant v. Marquez, 772 F.2d 552, 556 (9th Cir.
1985)). We apply this same general framework even where
the party challenging the denial of a continuance on appeal
failed to request one in the district court. See United States
v. Orlando, 553 F.3d 1235, 1237 (9th Cir. 2009) (“A district
court’s grant or denial of a continuance is reviewed for abuse
of discretion even where, as here, no motion for continuance
was made.” (citing United States v. Moreland, 509 F.3d
1201, 1211 (9th Cir. 2007))).

    “[T]he focus of our prejudice inquiry is the ‘extent to
which the aggrieved party’s right to present his [case] has
been affected’” by the failure to continue the trial sua sponte.
Kloehn, 620 F.3d at 1128 (quoting United States v. Mejia,
69 F.3d 309, 318 n.11 (9th Cir. 1995)). Because the record
shows that Bearchild’s right to present his case was not
substantially affected by the lack of a continuance, we
conclude that the district court’s decision was not arbitrary or
unreasonable.      To the contrary, the district court
conscientiously resolved a challenging situation and acted to
ensure that Bearchild, a pro se litigant, had a fair and
reasonable opportunity to present his case to the jury.

    Several facts inform our determination that Bearchild’s
right to present his case was adequately preserved. First, the
district court ordered MSP to produce two of Bearchild’s
inmate witnesses via video on the first day of trial, which was
                    BEARCHILD V. COBBAN                        15

the same day the district court received Bearchild’s subpoena
requests. Second, the district court inquired as to whether
Pasha intended to call any of the guards on Bearchild’s
witness list, thereby enabling Bearchild to question them on
cross-examination. Third, Simmons, the only eyewitness the
court declined to subpoena, provided two written statements
to which Pasha did not object. Perhaps most important,
Bearchild expressed his desire to go forward with the trial on
the scheduled date, despite voicing concerns that he was
missing legal documents from his cell that he claimed were
removed during a temporary transfer to another facility
before trial, and despite the district court’s ruling that it
would not subpoena Simmons. Because Bearchild has not
demonstrated sufficient prejudice, the district court did not
abuse its discretion by failing to continue trial sua sponte.
Kloehn, 620 F.3d at 1127.

                               IV.

    We next turn to Bearchild’s challenge to Instruction
No. 12, which set out the substantive law of his Eighth
Amendment claim. Bearchild did not object to this
instruction, so we review it for plain error. See C.B. v. City
of Sonora, 769 F.3d 1005, 1016 (9th Cir. 2014) (en banc).
The plain error standard requires the party challenging an
instruction to show that: (1) there was error; (2) the error was
plain; (3) the error affected that party’s substantial rights; and
(4) the error seriously affected the fairness, integrity, or
public reputation of judicial proceedings. See id. at 1017–19.
An instructional error is plain if it was “‘sufficiently clear at
the time of trial’ that the district court’s . . . instruction was
impermissible.” Hoard v. Hartman, 904 F.3d 780, 790 (9th
Cir. 2018) (quoting Draper v. Rosario, 836 F.3d 1072, 1086
(9th Cir. 2016)). A jury instruction that “adds an obviously
16                 BEARCHILD V. COBBAN

non-existent element to the plaintiff’s burden of proof” is
plainly erroneous under our circuit law. Id. We will usually
find sufficient prejudice to warrant reversal where “it is
impossible to determine from the jury’s verdict and
evidentiary record that the jury would have reached the same
result had it been properly instructed.” Id. at 791 (quoting
Sanders v. City of Newport, 657 F.3d 772, 782–83 (9th Cir.
2011)).

    We consider the entire set of instructions as a whole to
determine whether an individual instruction was misleading
or incorrectly stated the law. See Maddox v. City of L.A., 792
F.2d 1408, 1412 (9th Cir. 1986). Here, Instruction No. 12
must be read in conjunction with Instruction No. 11, because
Instruction No. 11 provided the jury with the basic principles
of a § 1983 cause of action and it explicitly cross-referenced
Instruction No. 12. We also consider Instruction No. 12 in
light of Instruction No. 13’s “sexual abuse” standard, which
was drawn from the PREA’s implementing regulations.

                              A.

    Prisoner Eighth Amendment challenges generally fall into
three broad categories. One type of claim arises when staff
exhibit “deliberate indifference to serious medical needs of
prisoners.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). A
closely related type of case addresses prisoners’ challenges to
their conditions of confinement. See Hope v. Pelzer,
536 U.S. 730, 737–38 (2002). A third type of claim asserts
that prison staff used excessive force against an inmate. See
Hudson v. McMillian, 503 U.S. 1, 5–6 (1992). Here, our
inquiry focuses on the last category because Bearchild
pleaded a sexual assault claim and we have consistently
placed prisoner sexual assault claims within the same legal
                  BEARCHILD V. COBBAN                      17

framework as excessive force claims. See Wood v. Beauclair,
692 F.3d 1041, 1051 (9th Cir. 2012); Schwenk v. Hartford,
204 F.3d 1187, 1197 (9th Cir. 2000).

    In Hudson v. McMillian, the Supreme Court considered
whether an inmate’s allegation that corrections officers beat
him during his transfer to administrative segregation stated
a viable Eighth Amendment claim because the inmate did
not “suffer serious injury.” 503 U.S. at 4. The Court
divided its inquiry into two components: (1) a “subjective”
inquiry into whether prison staff acted “with a sufficiently
culpable state of mind”; and (2) an “objective
component” that asked whether “the alleged wrongdoing
was objectively harmful enough to establish a
constitutional violation.”    Id. at 8 (internal quotation
marks omitted).

    With respect to the subjective component, the Court
reiterated earlier precedent establishing that “the unnecessary
and wanton infliction of pain . . . constitutes cruel and
unusual      punishment      forbidden     by     the Eighth
Amendment[,]” id. at 5 (omission in original) (quoting
Whitley v. Albers, 475 U.S. 312, 319 (1986)), but the
Court cautioned that “officials confronted with a prison
disturbance must balance the threat unrest poses to
inmates, prison workers, administrators, and visitors
against the harm inmates may suffer if guards use force.”
Id. at 6. The Court observed that “corrections officials
must make their decisions ‘in haste, under pressure, and
frequently without the luxury of a second chance.’” Id.
(quoting Whitley, 475 U.S. at 320). The Court held that the
subjective inquiry for excessive force claims “turns on
whether force was applied in a good faith effort to maintain
or restore discipline or maliciously and sadistically for the
very purpose of causing harm.” Id. (internal quotation marks
omitted) (quoting Whitley, 475 U.S. at 320–21). When
18                 BEARCHILD V. COBBAN

weighing the merits of excessive force claims, we have
interpreted Hudson to stand for the proposition that prison
staff should be “accorded wide-ranging deference[.]” Wood,
692 F.3d at 1050 (quoting Hudson, 503 U.S. at 6).

    Hudson also explained that the objective component of an
Eighth Amendment excessive force claim is “contextual and
responsive to ‘contemporary standards of decency.’”
503 U.S. at 8 (quoting Estelle, 429 U.S. at 103). The Court
distinguished between cases that involve allegations of
insufficient medical care, where a prisoner’s medical needs
must be objectively “serious,” with excessive force cases and
held that, “[i]n the excessive force context, society’s
expectations are different. When prison officials maliciously
and sadistically use force to cause harm, contemporary
standards of decency always are violated. This is true
whether or not significant injury is evident.” Id. at 9 (internal
citation omitted). In view of the contextual nature of this
inquiry, the Court declined to establish a categorical
standard for the showing of objective harm required to prove
an Eighth Amendment excessive force claim. Instead, it set
goalposts—expressly rejecting the notion that “serious
injury” is required but noting that de minimis force is not
actionable so long as it is not “of a sort ‘repugnant to the
conscience of mankind.’” Id. at 9–10 (quoting Whitley,
475 U.S. at 327). Following the Supreme Court’s guidance,
we have consistently held that a prisoner asserting an Eighth
Amendment claim “must objectively show that he was
deprived of something ‘sufficiently serious.’” Watison v.
Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (quoting Foster
v. Runnels, 554 F.3d 807, 812 (9th Cir. 2009)). That
objective standard remains constant, but what constitutes a
sufficiently serious deprivation may evolve as “the basic
mores of society change.” Kennedy v. Louisiana, 554 U.S.
                   BEARCHILD V. COBBAN                      19

407, 419 (2008) (quoting Furman v. Georgia, 408 U.S. 238,
382 (1972) (Burger, C.J., dissenting)). As the Supreme Court
explained in Hudson, “the Eighth Amendment’s prohibition
of cruel and unusual punishments ‘draw[s] its meaning from
the evolving standards of decency that mark the progress of
a maturing society,’ and so admits of few absolute
limitations.” 503 U.S. at 8 (alteration in original) (quoting
Rhodes v. Chapman, 452 U.S. 337, 346 (1981)).

     Five factors bear on the excessive force analysis in a
typical Eighth Amendment claim: “(1) the extent of injury
suffered by an inmate; (2) the need for application of force;
(3) the relationship between that need and the amount of force
used; (4) the threat reasonably perceived by the responsible
officials; and (5) any efforts made to temper the severity of a
forceful response.” Furnace v. Sullivan, 705 F.3d 1021, 1028
(9th Cir. 2013) (quoting Martinez v. Stanford, 323 F.3d 1178,
1184 (9th Cir. 2003)). Instruction No. 12 closely paralleled
the Ninth Circuit’s model instructions for Eighth Amendment
excessive force claims. For the reader’s convenience, we
restate Instruction No. 12 here:

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

           1. the defendant used excessive and
              unnecessary force under all of the
              circumstances;
20                BEARCHILD V. COBBAN

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

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

The instruction went on to say that:

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

           1) the extent of the injury suffered;

           2) the need to use force;

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

           4) any threat reasonably perceived by the
              defendant; and

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

           In considering these factors, you should
       give deference to prison officials in the
       adoption and execution of policies and
                  BEARCHILD V. COBBAN                     21

       practices that in their judgment are needed to
       preserve discipline and to maintain internal
       security in a prison.

    The “[u]se of a model jury instruction does not preclude
a finding of error.” Dang v. Cross, 422 F.3d 800, 805 (9th
Cir. 2005) (alteration in original) (quoting United States v.
Warren, 984 F.2d 325, 328 (9th Cir. 1993)). Further, as the
Supreme Court has emphasized, courts considering Eighth
Amendment claims must give “due regard for differences in
the kind of conduct against which an Eighth Amendment
objection is lodged.” Whitley, 475 U.S. at 320.

    Bearchild does not allege that Pasha used more physical
force than necessary to quell a riot or prevent a dangerous
situation from escalating; he asserts that Pasha abused his
position of authority by converting a routine pat-down search
into a humiliating and abusive sexual assault. Cf. id.
at 315–16 (considering Eighth Amendment challenge to use
of deadly force in context of riot and hostage situation). We
agree with Bearchild that Instruction No. 12 misstated our
circuit’s law with respect to an Eighth Amendment claim
premised on a sexual assault theory. Two of our prior
decisions make this plain.

    First, in Schwenk v. Hartford, we considered a § 1983
claim brought by a transsexual woman prisoner against a
male prison guard. 204 F.3d at 1193. Schwenk was initially
held in a medium-security section of the all-male Washington
State Penitentiary. Id. Schwenk alleged that the defendant-
guard, Mitchell, engaged in an escalating pattern of sexual
harassment that began with “winking, performing explicit
actions imitating oral sex, making obscene and threatening
comments, watching [Schwenk] in the shower while
22                BEARCHILD V. COBBAN

‘grinding’ his hand on his crotch area, and repeatedly
demanding that [Schwenk] engage in sexual acts with him.”
Id. Schwenk further alleged that Mitchell later propositioned
her for sex in exchange for “girl stuff” and then forcibly
grabbed her buttocks when she declined. Id. Schwenk tried
to avoid Mitchell after that encounter, but Mitchell
subsequently entered her cell, exposed himself, demanded
oral sex, and then pinned Schwenk against the bars of her cell
and “began grinding his exposed penis into her buttocks”
when she refused to comply. Id. at 1193–94. Schwenk
asserted that Mitchell retaliated after she rebuffed him by
orchestrating her transfer to a more restrictive housing unit
where she was at greater risk for sexual assault by other
inmates. Id. at 1194.

    In her § 1983 complaint, Schwenk argued that this pattern
of harassment and violence constituted a deprivation of her
Eighth Amendment rights. Id. Mitchell sought qualified
immunity, primarily arguing that his conduct did not rise to
the level of a constitutional violation, even if the disputed
facts were assumed in Schwenk’s favor. Id. at 1195. The
district court denied summary judgment and Mitchell filed an
interlocutory appeal. Id. We began our analysis by
reviewing the Supreme Court’s decision in Hudson, including
the Court’s clear direction that “when prison officials
maliciously and sadistically use force to cause harm
contemporary standards of decency are always violated.” Id.
at 1196 (quoting Hudson, 503 U.S. at 9). Taking our cue
from Hudson, we ruled that “no lasting physical injury is
necessary to state a cause of action” for an Eighth
Amendment violation arising from sexual assault, Schwenk,
204 F.3d at 1196, because “[a] sexual assault on an inmate by
a guard—regardless of the gender of the guard or of the
prisoner—is deeply offensive to human dignity.” Id. at 1197
                  BEARCHILD V. COBBAN                      23

(internal quotation marks omitted). Schwenk affirmed the
district court’s order denying Mitchell qualified immunity,
holding “the Eighth Amendment right of prisoners to be free
from sexual abuse was unquestionably clearly established
prior to the time of this alleged assault, and no reasonable
prison guard could possibly have believed otherwise.” Id.

    Wood v. Beauclair followed Schwenk. 692 F.3d at 1043.
In Wood, a male prisoner brought a § 1983 claim against a
female prison guard. Id. Wood alleged that the guard had a
reputation for being “overly friendly with the inmates” and
that she pursued a relationship with him. Id. at 1044. Despite
his efforts to resist her advances, Wood alleged that a
romantic—but not sexual—relationship began, where the two
would talk “often about personal topics” and “[o]ccasionally,
they would hug, kiss, and touch each other on the arms and
legs.” Id. When Wood learned that the guard was possibly
married, he sought to end their relationship but the guard
refused. Id. Wood alleged that the guard subjected him to
“aggressive pat searches in front of other inmates on a
number of occasions,” and, in at least two separate incidents,
entered Wood’s cell and forcibly grabbed his penis. Id.
at 1044–45.

    Wood filed a § 1983 action asserting “sexual harassment
by [the guard] in violation of the Eighth Amendment,” but the
district court granted partial summary judgment, dismissing
the Eighth Amendment harassment claims. Id. at 1045. The
court concluded that Wood had impliedly consented to the
sexual acts through his willing participation in the romantic
relationship and that, consequently, no sexual assault
occurred. Id. at 1046.
24                    BEARCHILD V. COBBAN

    Our opinion in Wood began with the premise that
“[s]exual harassment or abuse of an inmate by a corrections
officer is a violation of the Eighth Amendment.” Id. at 1046.
We went on to explain that “sexual contact between a
prisoner and a prison guard serves no legitimate role and ‘is
simply not part of the penalty that criminal offenders pay for
their offenses against society.’” Id. at 1050 (quoting Farmer
v. Brennan, 511 U.S. 825, 834 (1994)). Because there is no
“legitimate penological purpose” served by a sexual assault,
the subjective component of “malicious and sadistic intent”
is presumed if an inmate can demonstrate that a sexual assault
occurred. See id. at 1050–51 (citing Gregg v. Georgia,
428 U.S. 153, 182–83 (1976)); see also McCleskey v. Kemp,
481 U.S. 279, 301 (1987) (“[A]ny punishment might be
unconstitutionally severe if inflicted without penological
justification . . . .”). We also surveyed a range of cases from
other circuits, each of which held that sexual assault can be
cognizable as an Eighth Amendment violation. See Wood,
692 F.3d at 1050.7

  Wood also contrasted sexual assault cases with Eighth
Amendment excessive force claims arising out of prison

     7
      Wood cited three cases: Calhoun v. DeTella, 319 F.3d 936, 939 (7th
Cir. 2003) (considering claim that prison guards “purposefully demeaned
and sexually harassed [the plaintiff-prisoner] while strip searching him in
front of female officers” (alteration in original)); Berry v. Oswalt,
143 F.3d 1127, 1131 (8th Cir. 1998) (considering claim by female prisoner
that male guard “had attempted to perform nonroutine patdowns on her,
had propositioned her for sex, had intruded upon her while she was not
fully dressed, and had subjected her to sexual comments”); and Watson v.
Jones, 980 F.2d 1165, 1165 (8th Cir. 1992) (considering claim by two
male inmates that female correctional officer routinely “fondled them
during pat-down searches”). In each case, the court concluded that the
prisoner-plaintiffs presented colorable constitutional claims. See Wood,
692 F.3d at 1050.
                    BEARCHILD V. COBBAN                        25

guards’ efforts to suppress disturbances or restore discipline,
observing that when prison disturbances arise, “prison
officials must make ‘decisions in haste, under pressure, and
frequently without the luxury of a second chance.’” Id. at
1049–50 (quoting Hudson, 503 U.S. at 6). That context
requires courts to afford prison staff significant deference in
their use of force; only “malicious and sadistic” use of force
will rise to the level of a constitutional violation. Id. at 1050.
The same concerns are not present when officers are accused
of engaging in conduct for their own sexual gratification or to
humiliate or degrade inmates.

    Existing case law distinguishes Eighth Amendment
claims arising from sexual assault and makes a few points
very clear. First, sexual assault serves no valid penological
purpose. See Wood, 692 F.3d at 1050; Schwenk, 204 F.3d at
1196 n.6. Second, where an inmate can prove that a prison
guard committed a sexual assault, we presume the guard
acted maliciously and sadistically for the very purpose of
causing harm, and the subjective component of the Eighth
Amendment claim is satisfied. See Wood, 692 F.3d at 1050.
Finally, our cases have clearly held that an inmate need not
prove that an injury resulted from sexual assault in order to
maintain an excessive force claim under the Eighth
Amendment. See id.; Schwenk, 204 F.3d at 1196. Any
sexual assault is objectively “repugnant to the conscience of
mankind” and therefore not de minimis for Eighth
Amendment purposes. Hudson, 503 U.S. at 10 (quoting
Whitley, 475 U.S. at 327).

    The decision we issue today follows our prior holdings in
Schwenk and Wood—that sexual assault has no place in
prison—and it is entirely consistent with a steady drumbeat
of recent case law from our sister circuits. See, e.g., Ricks v.
26                 BEARCHILD V. COBBAN

Shover, 891 F.3d 468, 476 (3d Cir. 2018); Washington v.
Hively, 695 F.3d 641 (7th Cir. 2012). As the Second Circuit
observed in Crawford v. Cuomo, “societal standards of
decency regarding sexual abuse and its harmful consequences
have evolved,” 796 F.3d 252, 256 (2d Cir. 2015), and all but
two states have criminalized sexual contact between prisoners
and guards. See Crawford, 796 F.3d at 259 n.5–6 (collecting
statutes). Moreover, Congress passed the PREA unanimously
in 2003 and the Attorney General promulgated National
Standards to Prevent, Detect, and Respond to Prison Rape in
2012. See 77 Fed. Reg. 37,106 (June 20, 2012). These
legislative enactments are the “clearest and most reliable
objective evidence of contemporary values.” Atkins v.
Virginia, 536 U.S. 304, 312 (2002) (quoting Penry v.
Lynaugh, 492 U.S. 302, 331 (1989)). Schwenk and Wood
reflect our recognition of these societal standards.

    Schwenk and Wood had no occasion to define “sexual
assault” for Eighth Amendment purposes because it was
apparent that the extreme misconduct alleged in those cases
transgressed constitutional boundaries. We now hold that a
prisoner presents a viable Eighth Amendment claim where he
or she proves that a prison staff member, acting under color
of law and without legitimate penological justification,
touched the prisoner in a sexual manner or otherwise engaged
in sexual conduct for the staff member’s own sexual
gratification, or for the purpose of humiliating, degrading, or
demeaning the prisoner. This definition recognizes that there
are occasions when legitimate penological objectives within
a prison setting require invasive searches. It also accounts for
the significant deference courts owe to prison staff, who work
in challenging institutional settings with unique security
concerns. In a case like Bearchild’s, where the allegation is
that a guard’s conduct began as an invasive procedure that
                      BEARCHILD V. COBBAN                            27

served a legitimate penological purpose, the prisoner must
show that the guard’s conduct exceeded the scope of what
was required to satisfy whatever institutional concern
justified the initiation of the procedure.8 Such a showing will
satisfy the objective and subjective components of an Eighth
Amendment claim.9

                                   B.

    With this definition in mind, and set against the backdrop
established by Hudson, Wood, and Schwenk, we conclude that
Instruction No. 12 misstated the elements necessary to
establish liability for an Eighth Amendment violation arising
from sexual assault.

    Instruction No. 12 told the jury that Bearchild was
required to demonstrate that Pasha used “excessive and
unnecessary force under all of the circumstances”; that Pasha
“acted maliciously and sadistically for the purpose of causing
harm and not in a good faith effort to maintain or restore
discipline”; and that Pasha “caused harm” to Bearchild. Far
from being a good fit or perfectly reflecting the teachings of

    8
      In the years since we decided Schwenk and Wood, other circuits
have forged similar rules. See Ricks, 891 F.3d at 476; Crawford, 796 F.3d
at 254.
     9
       The dissent remarks that it is unclear whether the definition we
announce today should be woven into an excessive force instruction, or
whether it should replace Model Jury Instruction 9.26. But our task is to
resolve the issues presented by Bearchild’s appeal, not rewrite the model
jury instructions. We do not hold that Model Jury Instruction 9.26 would
be inapplicable in other cases, nor do we anticipate the facts of future
cases. As the model jury instructions recognize, trial court judges must
adapt instructions to accommodate the claims actually raised. See Manual
of Model Civil Jury Instructions, Introduction.
28                 BEARCHILD V. COBBAN

Schwenk and Wood, as the dissent suggests, this instruction
misstated the law in several significant ways.

    The elements identified in Instruction No. 12 placed a
greater burden on Bearchild than our law requires. As the
dissent acknowledges, our case law dictates that all of the
elements of a § 1983 sexual assault claim are established if a
prisoner proves that a sexual assault occurred. Wood,
692 F.3d at 1046. Unfortunately, Bearchild’s jury had no
way of knowing that.

    The jury was instructed that Bearchild was required to
prove that any force exercised was both “excessive and
unnecessary.” They were not told that any act constituting
sexual assault is by definition both excessive and
unnecessary. See id. Similarly, the jury was instructed that
Bearchild was required to show that Pasha acted maliciously
and sadistically for the purpose of causing harm, without
being told that a showing of sexual assault also satisfies this
element. See id. The law does not require that Pasha’s
actions “caused harm to [Bearchild],” in the form of physical
or lasting emotional injury. Schwenk, 204 F.3d at 1196
(observing that sexually abusive conduct is “offensive to
human dignity,” and violates the Eighth Amendment (quoting
Felix v. McCarthy, 939 F.2d 699, 702 (9th Cir. 1991))).

    Instruction No. 12 directed the jury to consider several
factors when deciding whether the three elements had been
established. The first was “the extent of the injury” Bearchild
suffered. This likely suggested that Bearchild was required
to show the pat-down caused physical injury in order to
establish an Eighth Amendment violation, a proposition
plainly contrary to our case law. See Wood, 692 F.3d
at 1050; Schwenk, 204 F.3d at 1196.
                   BEARCHILD V. COBBAN                       29

    Instruction No. 12’s direction to consider the “need to use
force” and the “relationship between the need to use force and
the amount of force used,” also likely confused the jury
because it was unaccompanied by an explanation that sexual
assault does not require violent physical force, or indeed, any
force. Consideration of “the need to use force,” taken from
the model instruction, fits when applied to a claim alleging
that staff used excessive force to respond to an altercation.
But directing a jury to consider the need to use force is
misleading, at best, for juries considering sexual assault
allegations. Further, in the circumstances of Bearchild’s case,
an instruction to consider the amount of force applied subtly
suggests that some forms of sexual assault may be de minimis
and do not rise to the level of a constitutional violation. We
emphatically rejected that notion in Wood and we reaffirm
here that sexual assault violates the Eighth Amendment
regardless of the amount of force used. See 692 F.3d at 1045
(“Sexual harassment or abuse of an inmate by a corrections
officer is a violation of the Eighth Amendment.”); see also
Hively, 695 F.3d at 643 (“An unwanted touching of a
person’s private parts, intended to humiliate the victim or
gratify the assailant’s sexual desires, can violate a prisoner’s
constitutional rights whether or not the force exerted by the
assailant is significant.”).

    Pasha suggests that any deficiencies in Instruction No. 12
were rendered harmless by the additional guidance provided
by Instruction No. 13. Essentially, he argues that if the jury
found that sexual abuse occurred pursuant to the PREA
standard set out in Instruction No. 13, it could have applied
that finding to Instruction No. 12’s more general directions
and returned a verdict in favor of Bearchild.
30                  BEARCHILD V. COBBAN

    We are not persuaded. Several different problems were
caused by the application of Instructions 11–13 to the facts of
this case, and Instruction No. 13 did not cure them. First,
Instruction No. 13 set forth one of twelve classes of conduct
that constitute sexual abuse under the PREA, but the
instruction did not explain whether the PREA’s “sexual
abuse” standard had anything to do with Bearchild’s Eighth
Amendment claim. Pasha’s counsel explained to our panel
and the trial transcript makes clear, that Pasha requested the
instruction after the court ruled that Bearchild’s proffered
exhibits would be admitted. Pasha requested Instruction No.
13 to give context to the exhibits’ brief mention of the PREA
investigation that was triggered by Bearchild’s administrative
grievance. The instruction was left untethered from
Instructions 11–12, likely because Pasha asked that it be
added after the court had approved a set of instructions for the
charge conference. Contrary to the dissent’s suggestion, the
district court viewed Instruction No. 12 as the one that would
determine whether Bearchild was assaulted, not Instruction
No. 13. Because even the district court did not contemplate
Instruction No. 13 as being pertinent to Bearchild’s Eighth
Amendment claim, one could hardly expect the jury to make
such an inference. Deck v. Jenkins, 814 F.3d 954, 983 (9th
Cir. 2016) (concluding that trial judge’s erroneous
interpretation of jury instructions “vividly illustrates” that the
jury “could no more than guess at the correct rule”).

    Second, the order of the instructions plays a role in our
review of the entire charge. See United States v. Warren,
25 F.3d 890, 898 (9th Cir. 1994). The set of instructions used
in this case began by explaining causation (Instruction No.
10), moved on to the two basic elements of every § 1983
claim (Instruction No. 11), identified the specific elements of
an Eighth Amendment excessive force claim (Instruction
                   BEARCHILD V. COBBAN                       31

No. 12), and then, in Instruction No. 13, informed the jury of
conduct that satisfies one of the PREA’s standards for sexual
abuse. We see no error in Instruction No. 10, as explained
infra, but Instruction No. 11 told the jury that if Bearchild
failed to prove any of the elements in Instruction No. 12, its
verdict should be for the defendant. The jury may have read
Instruction No. 12 and decided that because Bearchild
suffered no physical injury, the facts did not support the
inference that Pasha acted maliciously and sadistically. Thus,
if the jury considered the instructions sequentially, it may
have decided there was no liability without ever reaching
Instruction No. 13.

    The dissent takes issue with the panel’s conclusion that a
jury may not have reached Instruction No. 13 because “a jury
is presumed to follow the trial court’s instructions.” Deck,
814 F.3d at 979. The dissent’s objection misapprehends the
nature of the flaw in Bearchild’s jury instructions, and also
misapplies Deck. The problem arose precisely because a jury
is presumed to follow the court’s instructions, and Instruction
No. 12 directed the jury that Bearchild “must prove the
following elements,” without explaining that if they found the
pat-down became a sexual assault, Bearchild established an
Eighth Amendment violation.

     The jury was not given a definition of sexual assault for
Bearchild’s Eighth Amendment claim; Instruction No. 13
informed the jury of the standard applicable to Bearchild’s
administrative grievance. Even if we were to assume that the
jury applied an acceptable definition, it had no way of
knowing that any element of Instruction No. 12 was per se
satisfied if it decided the pat-down became a sexual assault,
let alone every element. Because Instruction No. 11 directed
the jury to find in Pasha’s favor if it concluded that Bearchild
32                 BEARCHILD V. COBBAN

failed to prove any of the elements in Instruction No. 12,
“[t]he instruction may have short-circuited the jury’s
deliberation by offering a path to finding for [Pasha] without
requiring that it assess all of the relevant [standards].” Frost
v. BNSF Ry. Co., 914 F.3d 1189, 1197 (9th Cir. 2019).

     Pasha argues that reliance on Schwenk and Wood is
misplaced because the principles announced in those cases
arose in a summary judgment context, where the disputed
facts were viewed in the light most favorable to the plaintiff.
Pasha contends that Bearchild mistakenly assumes that, at
trial, he was entitled to a presumption that a sexual assault
occurred. This argument also misses the mark. Our task is to
determine whether the instructions correctly identified the
elements Bearchild was required to prove at trial. The
portions of Schwenk and Wood upon which we rely set out
the applicable law governing Eighth Amendment sexual
assault claims, and the legal principles articulated in these
cases are not influenced by the procedural requirement that
the facts are viewed in the light most favorable to the non-
moving party at the summary judgment stage. Contrary to
Pasha’s assertions, our case law does not bake in an
assumption that a sexual assault took place. Rather, it simply
holds that where a plaintiff proves a prison staff member
sexually assaulted him or her, the prisoner necessarily
establishes an Eighth Amendment violation. See City of Long
Beach v. Standard Oil Co., 46 F.3d 929, 936 (9th Cir. 1995)
(holding that plaintiffs are entitled to “instructions on the
theories of their case if they are supported by the evidence”).

    We are not persuaded by Pasha’s argument that he would
have been hindered in presenting his defense if the
instructions had been tailored to fit an Eighth Amendment
sexual assault claim. In fact, Pasha could have defended the
                   BEARCHILD V. COBBAN                      33

case before a properly instructed jury in exactly the same way
he did: by arguing that his pat-down search was not an
unconstitutional sexual assault, and was instead a necessarily
invasive but permissible pat-down for contraband.

                              C.

    Bearchild did not object to Instruction No. 12 at trial, so
we next consider whether the instruction was plainly
erroneous and whether the error affected Bearchild’s
substantial rights. We conclude that both requirements are
satisfied.

    An error is plain when an instruction “adds an obviously
non-existent element to the plaintiff’s burden of proof.”
Hoard, 904 F.3d at 790. Schwenk and Wood established legal
principles applicable to Eighth Amendment cases dealing
with sexual assault, and the instructions here impermissibly
deviated from those standards. Thus, on the facts of this case,
the error is not merely that the instructions were not a “model
of clarity,” C.B., 769 F.3d at 1021, nor simply “less than
artful.” United States v. Hegwood, 977 F.2d 492, 496 (9th
Cir. 1992).

    The dissent argues that the lack of a model instruction
specifically tailored to this type of claim suggests that a
correct formulation is not yet plain or obvious. But the model
instructions are not a compendium of all that is plain or
obvious; they are “prepared to help judges communicate more
effectively with juries,” and they may require modification in
a particular case. Manual of Model Civil Jury Instructions,
Introduction; see also, e.g., United States v. Paul, 37 F.3d
496, 501 (9th Cir. 1994) (holding that use of instructions
closely tracking the model instructions constituted plain
34                       BEARCHILD V. COBBAN

error); Hegwood, 977 F.2d at 496 (observing that use of
model instruction would have constituted plain error). To
support its plain error argument, the dissent cites to a
statement in the model instructions that “[t]he Committee has
not formulated an instruction that relates to sexual harassment
claimed by an inmate.”10 But the dissent fails to note that the
same source directs readers to Wood and Schwenk, thereby
signposting that Model Instruction 9.26, unadapted, is not the
right fit for a sexual assault claim. See id.

    The third prong of the plain error test requires that we
consider whether the error prejudiced the complaining party
or otherwise affected his or her substantial rights. Hoard,
904 F.3d at 790. Even in the case of plain error review,
“[w]hen the trial court erroneously adds an extra element to
the plaintiff’s burden of proof, it is unlikely that the error will
be harmless.” Id. at 791 (alteration in original) (quoting
Sanders, 657 F.3d at 781). Bearchild introduced evidence
from which a jury could have found that Pasha stroked and
fondled him for the purpose of causing humiliation or for
Pasha’s own sexual gratification. We do not know whether
the jury found this testimony credible, but even if it did, it
likely would not have imposed liability because Instruction
No. 12 misdirected the jury. We have no difficulty
concluding that Instruction No. 12 prejudiced Bearchild.

    The dissent asserts that even if the jury had been properly
instructed, it still would not have assigned liability to Pasha.
But the dissent’s wholesale adoption of Pasha’s version of
events includes several unsupported assumptions. For
example, the dissent asserts that Bearchild “conceded” he had
claimed the sexual assault lasted for five minutes, despite not

     10
          Manual of Model Civil Jury Instructions, at 194.
                   BEARCHILD V. COBBAN                       35

mentioning this in his original grievance. It also asserts that
Bearchild affirmed that Pasha only momentarily grabbed his
penis. The trial transcript shows that Bearchild testified
Pasha engaged in a pat-down from behind, and then walked
around to the front of his body. On cross-examination,
Bearchild agreed that the groping and squeezing lasted five
minutes, that the inappropriate touching continued after Pasha
came around to his front, and that Pasha asked him to pull his
pants and underwear away from his body. Bearchild never
conceded that Pasha’s assault was momentary.

    The original grievance makes no mention of duration, so
it can hardly be deemed contradictory to Bearchild’s
testimony, and although the dissent asserts that inmate Ball
testified the sexual assault took place entirely from behind
and lasted over five minutes, Ball merely testified that the
pat-down started from behind and lasted “a little over five
minutes.” He was not asked whether Pasha walked around to
the front of Bearchild’s body. The dissent’s view that
Bearchild corroborated Pasha’s defense by admitting that a
bulge in his waistband required an additional pat-down
misinterprets Bearchild’s claim. Bearchild did not claim that
Pasha had no justification to begin his pat-down; he claimed
that the pat-down became sexually assaultive.

    Prong four of the plain error test asks whether “the error
seriously impaired the fairness, integrity, or public reputation
of judicial proceedings.” C.B., 769 F.3d at 1019 (quoting
Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 36 (1st Cir.
2006)). We do not hesitate to conclude that jury instructions
that overstate or misstate the elements a pro se prisoner must
prove undermine the fairness of judicial proceedings.
Bearchild alleged that Pasha engaged in serious misconduct
that degraded his personal dignity and undermined public
36                     BEARCHILD V. COBBAN

confidence in the integrity of our penological institutions.
Because his ability to pursue his claim was fundamentally
diminished by the jury instructions in this case, the final
prong of the plain error test is satisfied.

                                     V.

    We remand this case for a new trial with appropriate jury
instructions on the substantive law applicable to Bearchild’s
claim. We find no plain error in Instruction No. 10, but
because we remand for a new trial, we briefly pass on
Bearchild’s claim that Instruction No. 10 misstated the law
with respect to § 1983 causation. Instruction No. 10 told the
jury:

          In order to establish that the acts of the
          defendant Larry Pasha deprived the plaintiff
          of his particular rights under the United States
          Constitution as explained in later instructions,
          the plaintiff must prove by a preponderance of
          the evidence that the acts were so closely
          related to the deprivation of the plaintiff’s
          rights as to be the cause of the ultimate injury.

Bearchild contends on appeal that this instruction added an
additional, and legally unnecessary, element of causation.
Bearchild did not object to this instruction, so we review for
plain error.11 See C.B., 769 F.3d at 1016.


     11
       Bearchild argues the court should review Instruction No. 10 de
novo under an expanded version of the pointless formality exception. We
have said “[w]e will not punish a pro se litigant with plain error rather than
de novo review simply because he failed to say the words ‘I object’ when
the trial judge and defendants knew why the instruction might be
                      BEARCHILD V. COBBAN                             37

    We start from first principles: “[i]n a § 1983 action, the
plaintiff must . . . demonstrate that the defendant’s conduct
was the actionable cause of the claimed injury. To meet this
causation requirement, the plaintiff must establish both
causation-in-fact and proximate causation.” Harper v. City
of L.A., 533 F.3d 1010, 1026 (9th Cir. 2008) (internal
citations omitted); see also Arnold v. I.B.M. Corp., 637 F.2d
1350, 1355 (9th Cir. 1981) (holding that a § 1983 plaintiff
must establish both actual and proximate causation).

     Despite Bearchild’s protestations to the contrary,
Instruction No. 10 does no more than restate the principle of
proximate causation. It is true that this instruction derives
from cases that involve Monell-type municipal liability
claims, where proximate causation is often a contested issue.
It also arguably duplicates later instructions. But Instruction
No. 10 does not inaccurately state the law with respect to
Bearchild’s burden of persuasion on causation.

    Clem v. Lomeli, 566 F.3d 1177 (9th Cir. 2009), another
§ 1983 case, is not to the contrary. There, we remanded for
a new trial after the district court gave the jury a nearly
identical instruction to Instruction No. 10. Id. at 1181, 1183.
The difference is that in Clem, the plaintiff was proceeding on
a deliberate indifference theory—i.e., the plaintiff alleged that
the defendant’s failure to act gave rise to § 1983 liability, and
the instruction only allowed the jury to find in the plaintiff’s
favor if “the act of defendant Lomeli deprived [Clem] of his
particular rights[.]” Id. at 1180 (first alteration in original)
(emphasis added). Thus, the instruction misstated the law


erroneous and what the objection would have been,” Chess v. Dovey,
790 F.3d 961, 971 (9th Cir. 2015), but we conclude that Instruction No. 10
survives either standard of review.
38                      BEARCHILD V. COBBAN

applicable to the plaintiff’s “legitimate ‘failure to act’ theory
of liability[.]” Id. at 1182. Bearchild’s case materially differs
because his theory of liability is tied directly to Pasha’s
affirmative actions—there is no allegation that anything
Pasha failed to do violated Bearchild’s Eighth Amendment
rights. The problems we identified in Clem are not present in
this case, and we discern no plain error in Instruction No. 10.

  AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.12



CALLAHAN, Circuit Judge, concurring in part and
dissenting in part:

    I agree with the majority’s conclusion that the district
court’s decision not to continue the trial sua sponte was
within its broad discretion and was not “arbitrary or
unreasonable.” United States v. Kloehn, 620 F.3d 1122, 1127
(9th Cir. 2010) (quoting United States v. Flynt, 756 F.2d
1352, 1358 (9th Cir. 1985)). However, the district court’s use
of the Ninth Circuit’s model jury instruction for Eighth
Amendment excessive force claims, if error, was not plain
error warranting a new trial, particularly in light of the district
court’s additional instruction defining “sexual abuse” in a
manner well-tailored to the facts of the case. Contrary to
the majority’s conclusion, these instructions—though
imperfect—did not require Bearchild to prove “actual force”
and “physical injury,” and they did not state or imply that
certain forms of prisoner sexual abuse fall outside the Eighth


     12
          Costs are awarded to Bearchild.
                   BEARCHILD V. COBBAN                      39

Amendment’s protections against “cruel and unusual
punishments.” Accordingly, I would affirm the jury’s
verdict.

    After a two-day trial, the jury in this case rejected
Bearchild’s claim that a prison guard’s brief touching of his
groin area in the course of an otherwise lawful, clothed-body
pat-down search amounted to excessive force in the form of
sexual abuse. For good reason: Bearchild’s own testimony
undercut the credibility of this allegation and suggested that
the prison guard acted reasonably and without malice after
detecting a suspicious lump at the waistband of Bearchild’s
pants. Additional witness testimony contradicted portions of
Bearchild’s account and corroborated the testimony of
Sergeant Pasha, the prison guard who conducted the pat-
down. In other words, any imperfection in the jury
instructions had no effect on the verdict; a new jury, more
clearly informed that sexual abuse does constitute “excessive
force” under the Eighth Amendment, would not decide the
case any differently. Because Bearchild has failed to
demonstrate prejudice and this case does not present the type
of “manifest injustice” required for reversal under our court’s
precedents, I respectfully dissent from that portion of the
court’s holding and would affirm the judgment below.

                              I.

    It has been nearly six years since Bearchild, an inmate in
the Montana prison system, first alleged that prison guard
Pasha used excessive force against him during a routine,
clothed-body pat-down search of Bearchild’s legs and groin
area. At the time of the pat-down, Bearchild had just exited
a bathroom and was walking with two fellow inmates to an
educational course at the prison. Later that day, Bearchild
40                BEARCHILD V. COBBAN

submitted a grievance through the prison’s grievance system.
Lieutenant Blaz was assigned to conduct a Prison Rape
Elimination Act (PREA) investigation. Over the next week,
Blaz interviewed multiple witnesses, including Bearchild and
Pasha, reviewed various documents and incident reports, and
wrote a detailed report of investigation. Bearchild’s primary
complaint was that Pasha had him pull his pants and
underwear away from his waist in order to determine if he
was carrying contraband in his waistband. This, Bearchild
complained, was embarrassing and caused him to become
emotional due to memories of a childhood sexual assault.

    Blaz ultimately concluded that Pasha’s clothed-body
search of Bearchild complied with Montana State Prison
Procedures and found “no basis” for Bearchild’s allegations
of sexual assault and staff misconduct. In his letter to
Bearchild explaining his decision, Blaz wrote:

       The elements of your complaint have been
       carefully examined. It is important that you
       understand that a pat search is somewhat
       intrusive by its nature. It requires that the
       staff member engage in a level of touch that
       allows detection of foreign objects. Pat
       searches can range from a minor frisk to a
       time consuming and more complete process.
       Detection and prevention of contraband
       within the facility is a valid penological
       interest and absolute necessity [sic] to the
       safety and security of the facility. There
       appears to be no merit to the complaints of a
       sexual nature that you have attributed to the
       pat search therefore your claim is unfounded.
       Staff will continue to perform their duties
                   BEARCHILD V. COBBAN                      41

       related to the safety and security of this
       institution.

    Over the next four years, Bearchild continued to pursue
his grievance and eventually filed suit in the Montana district
court pursuant to 42 U.S.C. § 1983, alleging that Pasha’s
clothed-body pat-down search constituted cruel and unusual
punishment in violation of the Eighth Amendment. At trial,
the district court’s preliminary instructions described the
parties’ factual claims and the issues to be determined by the
jury as follows:

       The plaintiff Dewayne Bearchild asserts that
       the defendant Larry Pasha used excessive
       force and sexually assaulted him during a
       clothed body pat search by fondling plaintiff’s
       penis and testicles for approximately five
       minutes. The plaintiff has the burden of
       proving these claims.

       The defendant Larry Pasha denies that the pat
       search of Mr. Bearchild was performed with
       excessive force or sexual intent.        The
       defendant claims that the pat search was
       properly conducted in a good faith effort to
       maintain order within the prison, lasted less
       than one minute, and that plaintiff did not
       suffer any injury.

    Bearchild represented himself pro se. In his trial
testimony, he described the incident he characterizes as a
“sexual assault”:
42              BEARCHILD V. COBBAN

     Now a pat search is a pat (indicating). Well,
     his became like this (indicating). It was no
     more a pat search. He was looking for the
     medicine bag. He couldn’t find it. So then
     his hands started coming down. And that’s
     when he reached down, went up the right leg,
     went by the crotch, kind of grabbed my
     testicles, and then he went down to the left leg
     and back up again. Then that’s when he felt
     the object, he said in my waistband.

     Now, remember, I was rushing to take a—to
     urinate. And when I heard, “Last call,” I
     didn’t actually finish urinating, and my penis
     didn’t have enough time to drop down into the
     pants, so it was stuck.

     So when I walked out, that’s when he—he
     turned around. He felt it when he was behind
     me. He said, “What is this?”

     And I’m now like this, looking straight
     forward. “That’s my penis.”

     Well, apparently he didn’t believe me, so he
     came around this way. Now he’s in front of
     me. He grabs this underneath. He is
     squeezing. Then he’s rubbing this way.
     “What is this?”

     Again, “It’s my penis. You just got through
     touching it.”
                   BEARCHILD V. COBBAN                      43

       . . . . And when I turned around this way,
       that’s when he had me pull my underwear and
       the pants away from my body so he can view
       down inside. Now not seeing there’s no
       weapons, he sat there.

(Emphasis added.)

    On cross-examination, Bearchild affirmed this sequence
of events, including Pasha’s momentary grabbing of his penis
through his clothes. He conceded that he had, at times,
claimed the sexual assault lasted for five minutes, even
though he never mentioned this when he filed his original
grievance. And he reiterated that when the pat-down search
began, his penis was still caught in his waistband from his
recent bathroom visit, prompting Pasha to examine the lump
further.

    The testimony of Bearchild’s main eyewitness, inmate
Ball, was inconsistent with Bearchild’s account. Ball testified
that the sexual assault took place entirely from behind and
lasted over five minutes, in full view of multiple inmates and
prison staff, all of whom were laughing throughout the
incident.

    Pasha did not dispute that the pat-down search of
Bearchild’s groin area took place. Instead, he denied
Bearchild’s allegations of excessive touching and Bearchild’s
characterization of the incident as a sexual assault. He
presented multiple witnesses in his defense, including
witnesses who discussed (and demonstrated) the prison’s
policies and procedures for pat-down searches of an inmate’s
groin area. Significantly, both Pasha and an eyewitness,
Officer Schlosser, testified that Pasha detected a strange
44                  BEARCHILD V. COBBAN

bulge in Bearchild’s waistband during the initial pat-down,
and that this—not a desire to engage in malicious and sadistic
behavior—was what prompted a focused follow-on search of
Bearchild’s waist and groin area to ensure that the object was
not contraband. This was consistent with Pasha’s original
statement to the PREA investigator. Also consistent with his
original statement, Pasha stated that he had Bearchild pull the
waistband of his pants and underwear away from his body so
that he could visually ensure he was not carrying any
contraband. Both Pasha and Schlosser testified that the pat-
down lasted only a few seconds and involved no excessive
touching of Bearchild’s groin area.

    As noted in the majority’s opinion, the district court used
our standard instruction for Eighth Amendment excessive
force claims, Ninth Circuit Model Civil Jury Instruction 9.26
(Instruction No. 12), and Bearchild did not object.
Immediately following that instruction, the district court
provided an additional instruction at Pasha’s request
(Instruction No. 13), and again Bearchild did not object. That
instruction, adopted from the PREA, defined “sexual abuse”
as “intentional contact, either directly or through the clothing
of or with the genitalia, anus, groin, breast, inner thigh, or the
buttocks that is unrelated to official duties or where the staff
member has the intent to abuse, arouse, or gratify sexual
desire.”

    In his opening and summation, Pasha did not argue that
sexual abuse, as defined by Instruction No. 13, falls short of
the requirements for proving excessive force as set forth in
Instruction No. 12. Nor did he argue that sexual contact took
place but was consensual. Instead, he argued—consistent
with the preliminary instructions—that his pat-down of
Bearchild’s groin area lasted no longer than necessary, was
                    BEARCHILD V. COBBAN                        45

conducted in good faith and without malicious intent, was not
excessive or inappropriate, and was part of Pasha’s duty of
maintaining discipline at the prison. In other words, he was
just doing his job—a job that, for better or for worse, requires
him to regularly conduct pat-down searches of inmates’ leg
and groin areas in order to combat the flow of contraband
within the prison.

                               II.

     As the majority recognizes, because Bearchild did not
object to Instruction No. 12, we may review that instruction
for plain error only. Fed. R. Civ. P. 51(d)(2); C.B. v. City of
Sonora, 769 F.3d 1005, 1016 (9th Cir. 2014) (en banc).
“Such review permits us to notice and correct a district
court’s deviation from a legal rule only if three conditions are
met”: (1) there is error; (2) the error is plain or obvious; and
(3) the error affects the moving party’s substantial rights (i.e.,
the error must be prejudicial). United States v. Jimenez,
258 F.3d 1120, 1124 (9th Cir. 2001); accord City of Sonora,
769 F.3d at 1018. This third inquiry usually means that the
error “must have affected the outcome of the district court
proceedings.” United States v. Olano, 507 U.S. 725, 734
(1993). If all three of these conditions are met, we should
exercise our discretion to correct plain error “only if the error
‘seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings.’” City of Sonora, 769 F.3d
at 1018–19 (quoting Olano, 507 U.S. at 732 (internal
quotation marks and citation omitted)). The burden for
meeting the third and fourth prongs of the plain error test
rests with the appellant. Olano, 507 U.S. at 734–36; United
States v. Vonn, 535 U.S. 55, 62–63 (2002).
46                     BEARCHILD V. COBBAN

     The Supreme Court has explained that “appellate-court
authority to remedy [an] error” under the plain error test “is
strictly circumscribed.” Puckett v. United States, 556 U.S.
129, 134 (2009).1 “There is good reason for this; ‘anyone
familiar with the work of courts understands that errors are a
constant in the trial process, that most do not much matter,
and that a reflexive inclination by appellate courts to reverse
because of unpreserved error would be fatal.’” Id. (quoting
United States v. Padilla, 415 F.3d 211, 224 (1st Cir. 2005)
(Boudin, C. J., concurring)). Thus strict adherence to the
plain error standard is critical, as it helps “to induce the
timely raising of claims and objections, which gives the
district court . . . [the court that is] ordinarily in the best
position to determine the relevant facts and adjudicate the
dispute . . . the opportunity to consider and resolve them.” Id.

    We have observed that the plain error standard of review
in the civil context is even stricter than the plain error
standard applied in criminal cases. City of Sonora, 769 F.3d
at 1016. Because “the stakes are lower in the civil context . . .
plain errors should ‘encompass[ ] only those errors that reach

     1
       As the Fifth Circuit has observed, the plain error standard “mandates
considerable deference to the district court and focuses on whether the
severity of the error’s harm demands reversal, . . . not whether the district
court’s action . . . deserves rebuke.” United States v. Mendoza-Velasquez,
847 F.3d 209, 212–13 (5th Cir. 2017). “After all, ‘plain-error review is
not a grading system for trial judges.’” Id. (quoting Henderson v. United
States, 568 U.S. 266, 278 (2013)). “The appellant’s burden, then, ‘is
difficult, as it should be.’” Id. (quoting Puckett, 556 U.S. at 135 (internal
citation and quotation marks omitted)). Errors warranting reversal under
the plain error standard “are rare and egregious such that they would
shock the conscience of the common man, serve as a powerful indictment
against our system of justice, or seriously call into question the
competence or integrity of the district judge.” Id. (internal quotation
marks and citations omitted).
                       BEARCHILD V. COBBAN                                47

the pinnacle of fault envisioned by [this] standard.” Id.
at 1018 (quoting Hemmings v. Tidyman’s Inc., 285 F.3d 1174,
1193 (9th Cir. 2002) (internal citation and quotation marks
omitted)); see Draper v. Rosario, 836 F.3d 1072, 1085 (9th
Cir. 2016) (plain error in the civil context requires reversal
only in “extraordinary cases,” where “review is necessary to
prevent a miscarriage of justice”) (quoting Hemmings,
285 F.3d at 1093 (internal citation and quotation marks
omitted)); see also Franklin Prescriptions, Inc. v. N.Y. Times
Co., 424 F.3d 336, 341 (3d Cir. 2005) (“Plain error review is
discretionary—it should be exercised sparingly and should
only be invoked with extreme caution in the civil context.”)
(internal quotation marks omitted). “Accordingly, when
reviewing civil jury instructions for plain error, [this court]
consider[s] the costs of correcting an error, and—in
borderline cases—the effect that a verdict may have on
nonparties.” City of Sonora, 769 F.3d at 1018 (citing Fed. R.
Civ. P. 51 advisory committee’s note; Schiavone v. Fortune,
477 U.S. 21, 31 (1986); United States v. Petri, 731 F.3d 833,
839 (9th Cir. 2013)).2

    Applying these principles, we have held that, even when
a jury instruction is “not a model of clarity,” reversal under
the plain error standard is unwarranted unless the instruction


    2
       See also Elder v. Holloway, 984 F.2d 991, 998 (9th Cir. 1993)
(Kozinski, J., dissenting) (“The purpose of Rule 51 is to require timely
objections to instructions so the trial judge has a chance to change them
before the jury retires to consider its verdict. Without it, a party who fails
to object to a defective instruction would get two bites at the apple. If the
party gets a favorable verdict despite the bad instruction, it wins; if the
verdict is unfavorable, the party still has a shot at a new trial by appealing
on the ground that the instruction was defective. Moreover, the cost of an
appellate reversal based on faulty jury instructions—a completely new
trial—is obviously very high.”).
48                     BEARCHILD V. COBBAN

clearly misstates the law. Id. at 1021; see Dang v. Cross,
422 F.3d 800, 805 (9th Cir. 2005) (“In evaluating jury
instructions, prejudicial error results when, looking to the
instructions as a whole, the substance of the applicable law
was [not] fairly and correctly covered.”) (internal citation and
quotation marks omitted); United States v. Hegwood,
977 F.2d 492, 496 (9th Cir. 1992) (no plain error where the
court blended language from the relevant criminal statute and
a model jury instruction, even though the resulting instruction
in its entirety was “less than artful”).3 Likewise, we should
not reverse for plain error unless it is “sufficiently clear at the
time of trial” that the district court’s instruction was
impermissible. Hoard v. Hartman, 904 F.3d 780, 790 (9th
Cir. 2018) (quoting Draper, 836 F.3d at 1085); see
Henderson, 568 U.S. at 278 (noting that “lower court
decisions that are questionable but not plainly wrong (at time
of trial or at time of appeal) fall outside” the scope of plain
error review). Accordingly, when a district court uses the
relevant model jury instructions based on the offense or claim
alleged, we generally will find reversible plain error only
when that instruction (1) fails to include a necessary element,
or (2) adds an obviously non-existent one. Hoard, 904 F.3d
at 791; see also United States v. Warren, 984 F.2d 325,
327–28 (9th Cir. 1993); Hegwood, 977 F.2d at 496.




     3
       See also Cozzo v. Tangipahoa Parish Council–President Gov’t,
279 F.3d 273, 293–94 (5th Cir. 2002) (stating that to reverse for plain
error in civil jury instructions, the court “must find an obviously incorrect
statement of law that was probably responsible for an incorrect verdict,
leading to substantial injustice”); Teixeira v. Town of Coventry ex rel.
Przybyla, 882 F.3d 13, 18 (1st Cir. 2018) (observing that reversals on
plain error review of jury instructions are “hen’s-teeth rare”).
                   BEARCHILD V. COBBAN                        49

                              III.

    Here, the district court neither omitted a necessary
element nor added a non-existent one when it used Ninth
Circuit Model Civil Jury Instruction 9.26, our standard
instruction for Eighth Amendment excessive force claims.
The elements listed in Instruction No. 12, which closely
paralleled Model Jury Instruction 9.26, appropriately
reflected the core judicial inquiry for such claims: “whether
force was applied in a good-faith effort to maintain or restore
discipline, or maliciously and sadistically to cause harm.”
Hudson v. McMillan, 503 U.S. 1, 7 (1992). Likewise, the
elements listed in Instruction No. 12 essentially matched the
excessive force allegation as presented by Bearchild in his
testimony: (1) that Pasha used “excessive and unnecessary
force” by fondling Bearchild’s groin beyond what was
required for the pat-down search; (2) that this touching
constituted sexual abuse and was not “a good faith effort to
maintain or restore discipline”; and (3) that the sexual abuse
was harmful to Bearchild.

    The majority claims that Instruction No. 12 “misstated the
elements necessary to establish liability for an Eighth
Amendment violation arising from sexual assault” by
requiring Bearchild to show “physical injury” and by
suggesting that “sexual assault . . . require[s] violent physical
force.” But this is not a fair reading of the instruction, which
uses neither of these terms. The plain language of the
elements portion of the instruction requires the jury to
consider only whether Pasha “used excessive and
unnecessary force under all the circumstances” and whether
he “acted maliciously and sadistically for the purpose of
causing harm and not in a good faith effort to maintain or
restore discipline.” The dichotomy presented by these
50                 BEARCHILD V. COBBAN

elements—excessive and abusive behavior on the one hand,
good-faith law enforcement activity on the other—not only
appropriately addressed the “core judicial inquiry” of
Bearchild’s excessive force claim, it was a good fit for
contrasting the factual allegations of the parties, which
centered around Pasha’s intent and the duration of the pat-
down.

    Perhaps the factors listed in the second half of Ninth
Circuit Model Civil Jury Instruction 9.26 are not perfectly
tailored to claims involving non-forcible sexual assault.
Could the district court have modified these factors slightly
to emphasize that proof of physical injury is not required?
Probably. Could the court have added a sentence at the end
of Instruction No. No. 13 to clarify that if the jury believed
Pasha sexually abused Bearchild, then the elements of
excessive force and willful and malicious intent are
necessarily met? Of course.

     But this is plain error review, and so the question is not
whether the trial judge failed to achieve perfection. Rather,
the issue is whether the standard excessive force elements
listed in Model Jury Instruction 9.26 are legally erroneous
when the claim involves sexual abuse rather than some other
kind of physical abuse. Nothing in the model instructions or
our case law says that they are. And therefore, by definition,
the alleged instructional error perceived by the majority
cannot be plain or obvious. See Olano, 507 U.S. at 734 (in
order for an error to be “plain,” it must be “obvious” or “clear
under current law”). In fact, the comment to the model
instruction explicitly states that “[t]he Committee has not
formulated an instruction that relates to sexual harassment
claimed by an inmate.” Ninth Cir. Model Civil Jury
Inst ruc t i o n s , 9.26 Particular Rights—Eighth
                       BEARCHILD V. COBBAN                              51

Amendment—Convicted Prisoner’s Claim of Excessive
Force, Comment (2017 ed.). The lack of a model instruction
tailored for this type of claim suggests, if anything, that the
yet-to-be-issued correct formulation of an instruction
(assuming it should differ from the standard instruction for an
Eighth Amendment excessive force claim) is not yet plain or
obvious—at least not for trial judges lacking the power of
clairvoyance.4




    4
      In his brief, Bearchild seems to suggest that the Montana district
court should have looked to the unpublished case of Cleveland v. Curry,
No. 07-CV-02809-NJV, 2014 WL 690846 (N.D. Cal. Feb. 21, 2014) for
guidance on how to appropriately modify the elements of Model Jury
Instruction 9.26 in an excessive force case involving alleged sexual abuse.
In Cleveland, the district court instructed the jury as follows:

         Under the Eighth Amendment, a convicted prisoner has
         the right to be free from “cruel and unusual
         punishment.” In order to prove the defendant deprived
         each plaintiff of his Eighth Amendment right, each
         plaintiff must prove by a preponderance of the evidence
         that defendant . . . sexually assaulted one or more of the
         Plaintiffs.

         In determining whether defendant . . . sexually
         assaulted one or more of the Plaintiffs in this case,
         consider the need to use force in conducting the search,
         the relationship between that need and the amount of
         force used, and whether defendant applied the force in
         good faith.

2014 WL 690846, at *11–12. While I agree Cleveland provides a good
example of how district courts might exercise their discretion to fashion
jury instructions in similar cases in the future, the Cleveland instructions
are not “current law” for the purpose of plain error review.
52                 BEARCHILD V. COBBAN

    The majority asserts that our decisions in Schwenk v.
Hartford, 204 F.3d 1187 (9th Cir. 2000) and Wood v.
Beauclair, 692 F.3d 1041 (9th Cir. 2012) make it ‘plain and
obvious’ under current law that the district court committed
instructional error. But neither of those cases addressed
Model Jury Instruction 9.26. Instead, they stand for the non-
objectionable proposition that there is no penological
justification for a prison guard to sexually assault a prisoner,
and that if a plaintiff proves a sexual assault occurred then he
or she necessarily has met the elements of an excessive force
claim under 28 U.S.C. § 1983. See Schwenk, 204 F.3d
at 1197; Wood, 692 F.3d at 1050. Significantly, both
Schwenk and Wood arose in the summary judgment
context—in Schwenk, we rejected the defendant’s argument
for qualified immunity; in Wood, we rejected the defendant’s
consent defense—and therefore neither case addressed the
specific issue here: the appropriateness of the excessive force
jury instruction when the defendant does not deny that the
touching occurred but instead argues that it was not sexual in
nature and served a valid, penological purpose.

    Bearchild also cites the Tenth Circuit’s decision in Giron
v. Corrections Corporation of America, 191 F.3d 1281 (10th
Cir. 1999), which we cited in Wood. In Giron, the defendant
prison guard did not deny the inmate’s allegations of sexual
intercourse, but instead argued at trial that the acts were
consensual. Id. at 1284. The Giron district court used an
excessive force instruction similar to Instruction No. 12 here,
and the Tenth Circuit found the instruction plainly erroneous
because it imposed an “additional hurdle [on Ms. Giron] of
showing that the coercion involved malice under a test
primarily designed for a prison guard’s use of force to
maintain order.” Id. at 1290 (emphasis added). Bearchild
argues that Giron is dispositive here. Not so: unlike the
                   BEARCHILD V. COBBAN                        53

defendant in Giron, Pasha did not argue consent; instead, he
denied that the touching was sexual in nature or that it fell
outside the scope of a lawful, clothed-body pat-down wherein
he reasonably suspected Bearchild of carrying contraband in
his waistband.

    This difference is critical. If the facts in this case were
similar to the facts in Giron or Wood—that is, if Pasha’s
defense was that sexual assault cannot, by definition,
constitute “excessive force”—then I might agree there was
plain and obvious error. But Pasha asserted that there was no
sexual assault, and at no time did he argue that sexual abuse
of inmates by prison guards falls outside of Eighth
Amendment protections against cruel and unusual
punishment. Thus the majority’s holding that “where a
plaintiff proves that a prison staff member committed a
sexual assault, the prisoner necessarily establishes an Eighth
Amendment violation,” is a correct statement of law but
inapplicable to the factual dispute at issue in this case.

   The jury instructions in this case accurately (if
imperfectly) reflected our holdings in Schwenk and Wood.
Even if there was error, it was not plain.

                              IV.

    Even if the district court committed plain and obvious
error when it used the Ninth Circuit’s standard excessive
force instruction in a case involving alleged sexual abuse,
Bearchild still has the burden of meeting the third and fourth
prongs of the plain error test: (1) prejudice (i.e., that the
outcome of the trial would have been different but for the
instructional error); and (2) that the error “seriously affect[s]
the fairness, integrity or public reputation of judicial
54                 BEARCHILD V. COBBAN

proceedings.” City of Sonora, 769 F.3d at 1018–19 (internal
quotation marks and citation omitted). He has not done so.

    First, any potential prejudice stemming from Instruction
No. 12 was cured by Instruction No. 13. This instruction
defined sexual abuse of an inmate to include “intentional
contact, either directly or through the clothing of or with the
genitalia, anus, groin, breast, inner thigh, or the buttocks that
is unrelated to official duties or where the staff member has
the intent to abuse, arouse, or gratify sexual desire.” Read in
conjunction with Instruction No. 12, Instruction No. 13
effectively informed the jury that touching an inmate’s groin
could, depending on the facts, amount to “excessive and
unnecessary force under all the circumstances” as opposed to
a good-faith effort to follow the prison’s security policies and
practices relating to pat-down searches. This reading also
comports with common sense, which the jury members
presumably did not abandon when they considered the
evidence and the charge.

    The majority, however, speculates that “the jury may have
decided there was no liability without ever reaching
Instruction No. 13.” But this results-driven surmise ignores
clear precedent that “a jury is presumed to follow the trial
court’s instructions.” Deck v. Jenkins, 814 F.3d 954, 979 (9th
Cir. 2016) (citing Weeks v. Angelone, 528 U.S. 225, 234
(2000)). The majority cites United States v. Warren, 25 F.3d
890, 898 (9th Cir. 1994) for the proposition that “the order of
the instructions plays a role in our review of the entire
charge.” True, but in Warren we did not hold or suggest that
a jury might ignore certain instructions depending on their
sequencing, or that we may presume that the jury did so if we
disagree with its final judgment. Instead, we took the exact
opposite approach, emphasizing the importance of
                       BEARCHILD V. COBBAN                                55

“consider[ing] how the jury would have reasonably
understood the challenged instruction in the context of the
instructions as a whole.” Warren, 25 F.3d at 897.5

    Second, Bearchild’s own testimony severely undercuts
the credibility of his claim. Not only did he contradict
himself multiple times, he corroborated Pasha’s defense by
admitting that at the time of the pat-down, his penis was
caught in the waistband of his pants, causing Pasha to have to
perform an additional pat-down search to determine whether
the bulge he detected was contraband. In addition,
Bearchild’s testimony was contradicted by his own
eyewitness, whose description of the assault diverged in
material respects from Bearchild’s testimony. Pasha’s
defense witnesses, on the other hand, all tended to
corroborate his description of events and support the view
that this was a lawful—albeit uncomfortable—pat-down
search with a legitimate, penological purpose. The jury was
also provided with the original PREA investigator’s report
and notes of investigation, which corroborated Pasha’s
account and further undermined Bearchild’s claim. Thus,
even if the jury had been instructed more precisely on the
relationship between sexual abuse and excessive force, it still
would not have assigned liability to Pasha.

    The majority overlooks these facts, distorts Bearchild’s
actual trial testimony, and ignores the reasonableness of
Pasha’s suspicion in order to have “no difficulty concluding
that Instruction No. 12 prejudiced Bearchild” and


    5
       Taking this approach in Warren, we held that the challenged
instruction, “when consider[ed] . . . in the context of the other instructions
given” at trial, did not inappropriately shift the burden of proof to the
defendant. 25 F.3d at 898.
56                     BEARCHILD V. COBBAN

“undermine[d] the fairness of judicial proceedings.” This
conclusion insists that Instruction No. 12 required proof of
“physical injury” (those words appear nowhere in the
instruction), and ignores our statement in City of Sonora that
the discretion to recognize plain error in civil jury instructions
should be exercised only when the error reaches the “pinnacle
of fault envisioned by” the standard. 769 F.3d at 1018
(internal citation and quotation marks omitted). We further
instructed that courts first must consider “the costs of
correcting an error, and—in borderline cases—the effect that
a verdict may have on nonparties.” Id. (internal citations
omitted). By remanding for a new trial, the majority
compounds the costs to Pasha and to the justice system
further, even though there is no reasonable likelihood that the
result will be any different at Bearchild’s next trial. The
majority’s casual treatment of the third and fourth prongs of
plain error review opens the “plain error floodgates” that the
Supreme Court warned us to guard against in Henderson, 566
U.S. at 278.6




     6
       It is unclear from the majority’s opinion whether it intends in future
cases that its proposed “definition” (“[A] prisoner presents a viable Eighth
Amendment claim where he or she proves that a prison staff member,
acting under color of law and without penological justification, touched
the prisoner in a sexual manner or otherwise engaged in sexual conduct
for the staff member’s own sexual gratification, or for the purpose of
humiliating, degrading, or demeaning the prisoner”), be woven into the
standard excessive force instruction as was done in Cleveland, see supra
note 4, or if this new language is supposed to be used by district courts in
place of the elements and factors contained in Model Jury Instruction 9.26.
This lack of clarity in the majority’s proposed definition as well as its
relationship with our model jury instruction will sow confusion in the
district courts and generate additional appeals.
                   BEARCHILD V. COBBAN                       57

                              V.

    Here, once again, we make “a hash of the plain error
standard.” United States v. Dreyer, 705 F.3d 951, 953 (9th
Cir. 2013) (Tallman, J., dissenting). In this case, no
reasonable juror would conclude, based on a fair reading of
the instructions as a whole, that sexual abuse “does not
count” as cruel and unusual punishment unless it causes
physical injury. Likewise, no reasonable juror would
conclude, based on a fair reading of the evidence at trial, that
Bearchild’s Eighth Amendment right to be free from cruel
and unusual punishment was violated when a lawful pat-
down of Bearchild’s groin area was extended after Pasha
discovered a suspicious lump in Bearchild’s waistband. Any
imperfection in the jury instructions had nothing to do with
the outcome.

    Dewayne Bearchild had his day in court. Giving him a
second bite at the apple on the grounds of instructional error,
despite his failure to object at trial, will unnecessarily
compound the costs of litigation in this case and will further
incentivize litigants to make untimely objections in future
cases. Because Bearchild has failed to demonstrate prejudice
and this case does not present the type of “manifest injustice”
required for reversal under prongs three and four of the plain
error test, I respectfully dissent.
