Bearchild v. Cobban et al

Filing 381

ORDER denying 371 Motion for New Trial. Signed by Judge Dana L. Christensen on 8/24/2021. (ASG)

Case 6:14-cv-00012-DLC Document 381 Filed 08/24/21 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
DEWAYNE BEARCHILD,

CV 14–12–H–DLC

Plaintiff,
vs.

ORDER

LARRY PASHA,
Defendant.
Before the Court is Plaintiff Dewayne Bearchild’s Motion for a New Trial.
(Doc. 371.) Mr. Bearchild moves this Court for a new trial pursuant to Federal
Rule of Civil Procedure 59. (Doc. 372.) Specifically, Mr. Bearchild argues that a
new trial is necessary because the first question on the verdict form was
“unnecessary and likely caused juror confusion” and to otherwise prevent a
miscarriage of justice. (Id. at 2.) Defendant Larry Pasha objects. (Doc. 374.)
BACKGROUND
Mr. Bearchild, then an inmate at the Montana State Prison, originally filed
this lawsuit in March 2014, complaining that Mr. Pasha sexually assaulted him
during a pat-down search performed on November 4, 2013. (See generally Doc.
2.) The matter proceeded to trial almost three years later and the jury found in
favor of Mr. Pasha. (Doc. 258.) Mr. Bearchild appealed, and the Ninth Circuit

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subsequently reversed based on jury instruction error. See generally Bearchild v.
Pasha, 947 F.3d 1130 (9th Cir. 2020).
Following remand, this matter proceeded to a second jury trial beginning on
June 21, 2021. (Doc. 357.) On the penultimate day of trial, the Court discussed its
proposed verdict form with the parties. Mr. Bearchild objected to the wording of
the first question, asking for some additional language, which the Court overruled.1
After making some minor revisions, not at issue in the current motion, the Court
settled the final verdict form with the parties.
This verdict form asked the jury, in relevant part:
(1) Did Defendant Larry Pasha act without penological justification
during the pat search of Plaintiff Dewayne Bearchild? (See
Instructions F-10 and F-11.)
Yes_____

No_____

If you answered “No” to Question No. 1 do not answer the
remaining questions. Sign and date the Special Verdict and notify the
bailiff you have completed your deliberation. If you answered “Yes”
to Question No. 1 proceed to Question No. 2.
(2) Did Defendant Larry Pasha touch Plaintiff Dewayne Bearchild
in a sexual manner, engage in sexual conduct for Mr. Pasha’s own
sexual gratification, or act for the purpose of humiliating, degrading,
or demeaning Mr. Bearchild? (See Instructions F-10 and F-11.)
Yes_____

No_____

Notably, the substance of this objection does not form the basis of Mr. Bearchild’s current
attack on the first question, which he now asserts should not have been given altogether.
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If you answered “No” to Question No. 2, do not answer the
remaining questions. Sign and date the Special Verdict and notify the
bailiff you have completed your deliberation. If you answered “Yes”
to Question No. 2 proceed to Question No. 3.
(Doc. 368 at 1–2.) The jury answered no to the first question, thereby reaching a
verdict in Mr. Pasha’s favor. (Id. at 1, 3.)
STANDARD
The Federal Rules of Civil Procedure authorize this Court to “grant a new
trial . . . after a jury trial, for any reason for which a new trial has heretofore been
granted in an action at law in federal court.” Fed. R. Civ. P. 59(a)(1)(A). “Rule 59
does not specify the grounds on which a motion for a new trial may be granted”
but instead binds federals courts to “those grounds that have been historically
recognized.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007). In the
Ninth Circuit, this Court may “invade the province of the jury” by granting a
motion for new trial “only if the verdict is contrary to the clear weight of the
evidence, is based upon false or perjurious evidence, or to prevent a miscarriage of
justice.” Skydive Ariz., Inc. v. Quattrocchi, 673 F.3d 1105, 1113 (9th Cir. 2012)
(noting that denial of such a motion is “virtually unassailable”).
What is also clear, however, is that a new trial generally cannot be based on
assignments of error that could have been raised during trial but were not. 11
Mary Kay Kane, Federal Practice and Procedure § 2805 (3d ed. 2021) (stating
that a “principle that strikes very deep is that a new trial will not be granted on
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grounds not called to the court’s attention during the trial unless the error was so
fundamental that gross injustice would result”); see also Bradford v. City of L.A.,
1994 WL 118091, *4 (9th Cir. 1994) (unpublished). Applying the foregoing
standard, the Court will deny Mr. Bearchild’s motion for a new trial.
ANALYSIS
Recall, Mr. Bearchild rests his motion for a new trial on two independent
grounds. First, Mr. Bearchild argues that the verdict form’s first question was
confusing and led to a situation in “the jury could not have rationally found for”
him. (Doc. 372 at 4– 9.) Second, Mr. Bearchild contends letting the jury verdict
stand in light of evidentiary rulings issued by this Court during the course of trial
would occasion a miscarriage of justice. (Id. at 9–11.) The Court will address
each contention in turn.
I.

The Verdict Form.

Mr. Bearchild’s principal argument is that question one on the verdict form
misapplied the Ninth Circuit’s opinion in Bearchild and made it impossible for the
jury to return a verdict in his favor. As a threshold matter, the Court is skeptical
that this argument can properly form the basis of affording him a new trial.
Bradford, 1994 WL 118091 at *4. As stated previously, a “principle that strikes
very deep is that a new trial will not be granted on grounds not called to the court’s

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attention during the trial unless the error was so fundamental that gross injustice
would result.” Kane, supra, § 2805.
There is no reason Mr. Bearchild could not have raised during trial the issues
he now suddenly has with the verdict form’s first question. Mr. Bearchild’s entire
argument stems from his reading of the Ninth Circuit’s opinion in Bearchild, an
opinion that existed long before this case even proceeded to the instant trial.
Where, as here, a party’s argument in favor of a new trial rests on grounds that
could have been raised before or during trial, a district court does not err in
denying a motion for new trial on that basis. United States v. Walton, 909 F.2d
915, 924 (6th Cir. 1990). Nonetheless, the Court finds Mr. Bearchild’s argument
unavailing on the merits.
The Court begins by discussing Bearchild. The critical issue in Bearchild
was whether the model jury instructions on which this Court relied during the first
trial were plainly erroneous. 947 F.3d at 1135, 1139. The Ninth Circuit began by
describing Mr. Bearchild’s claim as one in which a pat-down search was allegedly
converted “into a sexual assault.” Id. at 1134. Mr. Bearchild endorses this
characterization of his claim. (Doc. 372 at 5.) The Ninth Circuit then went on to
describe the law surrounding Eighth Amendment sexual assault claims at length.
Bearchild, 947 F.3d at 1140.

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The Court synthesized prior authority to reveal several principles regarding
Eighth Amendment sexual assault claims. First, “sexual assault serves no valid
penological purpose.” Id. at 1144. 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.” Id. Lastly, “an inmate
need not prove that an injury resulted from sexual assault in order to maintain an
excessive force claim under the Eighth Amendment.” Id.
Based on these principles, the Ninth Circuit forged the following rule,
stating:
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 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. Such a showing will satisfy the objective and subjective
components of an Eighth Amendment claim.
Id. at 1144–45.
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Following the issuance of this opinion, the Ninth Circuit Jury Instructions
Committee developed the following pattern instruction, which states, in relevant
part:
Under the Eighth Amendment, a convicted prisoner has the right to be
free from “cruel and unusual punishments.” To prove the defendant
deprived [name of applicable plaintiff] of this Eighth Amendment
right, the plaintiff must establish the following elements by a
preponderance of the evidence:
1.

[Name of applicable defendant] acted under color of law;

2.

[Name of applicable defendant] acted without
penological justification; and

3.

[Name of applicable defendant] [touched the prisoner in
a sexual manner] [engaged in sexual conduct for the
defendant’s own sexual gratification] [acted for the
purpose of humiliating, degrading, or demeaning the
prisoner].

Ninth Cir. Pattern Jury Instr. Civ. 9.26A (2017 ed.).
The Court’s verdict form modeled these elements precisely. (Doc. 368 at 1–
2.)2 Mr. Bearchild essentially argues this pattern instruction and its incorporation
into the verdict form misstates the law as delineated by the Ninth Circuit in
Bearchild. Specifically, Mr. Bearchild argues that because his claim was based on
a theory of conversion from a legitimate pat down search to a sexual assault and

2

Because the parties stipulated that Mr. Pasha acted under color of law (Doc. 363 at 4, 12), and
the jury was instructed to accept this stipulation (id.), the first element was omitted from the final
verdict form.
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because he conceded at trial that Mr. Pasha “had a legitimate penological
justification at the beginning of” the pat search at issue, there is no possible way
the jury could have ruled in his favor. The Court disagrees.
First, the jury was specifically instructed that there is no penological
justification for sexual assault. (Docs. 363 at 13.) As such, if the jury concluded
that Mr. Pasha sexually assaulted Mr. Bearchild, then it would have answered
“yes” to the verdict form’s first question. Second, the verdict form’s first question
specifically cross referenced the final instruction delineating the elements of Mr.
Bearchild’s claim.3 And this instruction stated that Mr. Bearchild was required to
prove “Mr. Pasha acted without penological justification, meaning that his conduct
exceeded the scope of what was required to satisfy whatever institutional concern
justified the initiation of a path search.” (Doc. 363 at 12 (emphasis added).)
This is precisely how the Ninth Circuit characterized the law applicable to
Mr. Bearchild’s claim. Bearchild, 947 F.3d at 1145 (“In a case like Bearchild’s,
where the allegation is that a guard’s conduct began as an invasive procedure that
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”) (emphasis added). Based on this

3

It bears repeating that this instruction was specifically drafted by the Ninth Circuit Jury
Instructions Committee to capture the elements of Mr. Bearchild’s claim, following his
successful appeal to the Ninth Circuit after the first trial.
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cross-reference, the Court does not agree that the instructions or verdict form told
the jury Mr. Bearchild could only prevail if the jury concluded the entire pat down
search, from beginning to end, lacked a legitimate penological purpose. The Court
will not grant a new trial on this basis.
II.

Evidentiary Rulings.

The Court declines to rehash and reanalyze evidentiary rulings made
during the course of trial. The Court already explained its reasoning at
length and repeatedly on the record and its view of those issues has not
changed since trial. In short, the Court is of the view that a miscarriage of
justice will not be occasioned if it declines to reverse the course of certain
challenged evidentiary rulings. The jury’s verdict will not be disturbed on
this basis.
Accordingly, IT IS ORDERED that the motion (Doc. 371) is
DENIED.
DATED this 24th day of August, 2021.

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