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Eleventh Circuit concludes that Pattern Jury Instruction 5.6 misstates Eleventh Circuit law when applied to inmate’s Eighth Amendment claim involving alleged sexual assault by prison guard

On September 21, 2021, in DeJesus v. Lewis, et al., No. 18-11649, the Eleventh Circuit Court of Appeals considered the appeal of a 42 U.S.C. § 1983 civil rights lawsuit brought by a Florida state prison inmate who alleged he had been sexually assaulted by a prison guard. The jury returned a verdict in favor of the prison guard at trial and the plaintiff inmate appealed on a several grounds, including alleged errors in the Eleventh Circuit’s Pattern Jury Instruction 5.6, which applies to Eighth Amendment Claims by prisoners concerning alleged use of excessive force. This issue was reviewed on appeal for plain error since there was no timely objection made at trial to the Instruction. The Eleventh Circuit concluded that Instruction 5.6in fact misstates the law of the Eleventh Circuit as it applies to sexual assault cases because it requires the plaintiff to prove not only that a sexual assault occurred but also that the force used was excessive. The Court noted that the latter element is not required in sexual assault cases, citing, inter alia, Sconiers v. Lockhart, 946 F.3d 1256 (11th Cir. 2020). However, the Eleventh Circuit additionally concluded that the erroneous use of Instruction 5.6 did not constitute plain error, i.e., the instruction likely was “responsible for an incorrect verdict” that would have affected the outcome of the trial, because the evidence reasonably supported the jury’s finding that no sexual assault occurred. The Eleventh Circuit accordingly left the jury verdict undisturbed.