Dewayne Bearchild v. Larry Pasha ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 22 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEWAYNE BEARCHILD, No. 21-35768
Plaintiff-Appellant, D.C. No. 6:14-cv-00012-DLC
v.
MEMORANDUM*
LARRY PASHA, Sgt.,
Defendant-Appellee,
and
KRISTY COBBAN; et al.,
Defendants.
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, District Judge, Presiding
Argued and Submitted June 6, 2023
Seattle, Washington
Before: SCHROEDER, CALLAHAN, and BEA, Circuit Judges.
On November 3, 2013, Sergeant Larry Pasha conducted a pat-down search
of inmate Dewayne Bearchild. Bearchild filed this action alleging that the search
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
violated his rights under the Eighth Amendment. After the Ninth Circuit vacated
an initial jury verdict in favor of Pasha, Bearchild v. Cobban, 947 F.3d 1130, 1135
(9th Cir. 2020) (Bearchild I), a second trial resulted again in a jury verdict in
Pasha’s favor. Bearchild filed a timely appeal contending that the district court
erred in excluding evidence of two other incidents of pat-down searches conducted
by Pasha, which purportedly amounted to sexual assaults, and in failing properly to
instruct the jury on the elements Bearchild needed to prove to prevail on his Eighth
Amendment sexual claim under Bearchild I. We have jurisdiction pursuant to 28
U.S.C. § 1291 and we affirm.
1. In “deference to a district court’s familiarity with the details of the cause
and its greater experience in evidentiary matters, courts of appeals afford broad
discretion to a district court’s evidentiary rulings.” Sprint/United Mgmt. Co. v.
Mendelsohn, 552 U.S. 379, 384 (2008). We review evidentiary rulings for abuse
of discretion and will reverse only if the error was prejudicial. C.B. v. City of
Sonora, 769 F.3d 1005, 1021 (9th Cir. 2014) (en banc).
The district court excluded evidence concerning certain pat-down searches
conducted by Pasha, subsequent to the claimed incident, on November 10, 2013,
and June 27, 2017. Bearchild asserts that this evidence was admissible pursuant to
Federal Rule of Evidence 415 as evidence of other purported sexual assaults
committed by Pasha. Bearchild further contends that the district court, in
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excluding the evidence pursuant to Federal Rule of Evidence 403,1 did not properly
apply the test set forth in Blind-Doan v. Sanders, 291 F.3d 1079, 1082–83 (9th Cir.
2002).
The district court adequately considered the factors set forth in Blind-Doan
in excluding the evidence and provided a sufficient explanation for its decision.
Although the excluded reports and testimony contain some allegations that Pasha’s
pat-down searches constituted sexual assaults, the evidence also reflects that Pasha
consistently performed more thorough pat-down searches than other officers, that
the searches were not conducted in a sexual manner, and that while some officials
thought Pasha’s searches went too far, the searches were not ultimately deemed to
have been improper. Had the district court admitted the incident reports and
testimony concerning the two incidents not at issue in this case, it would have
opened the door to collateral issues such as whether Pasha’s searches were
consistent with prison guidelines and whether certain officers were motivated by
personal grievances when they objected to Pasha’s searches. Furthermore, in the
context of the district court’s pretrial evidentiary ruling, which deemed fourteen
1
Federal Rule of Evidence 403 states:
The court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the following:
unfair prejudice, confusing the issues, misleading the jury, undue
delay, wasting time, or needlessly presenting cumulative evidence.
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internal prison reports regarding Pasha’s searches admissible, the court’s
admission of six of the seven reports actually proffered by Bearchild at trial, and
the testimony of Bearchild’s eight witnesses, the district court’s exclusion of
evidence concerning the November 10, 2013, and June 27, 2017, incidents was not
prejudicial. Thus, Bearchild has failed to demonstrate that the district court abused
its discretion when it excluded evidence pursuant to Federal Rule of Evidence 403.
United States v. Hinkson, 585 F.3d 1247, 1262–63, 1267 (9th Cir. 2009) (en banc).
2. We review de novo whether a jury instruction misstates the law; such an
error warrants reversal unless the error was harmless. Harrington v. Scribner, 785
F.3d 1299, 1306 (9th Cir. 2015). If there is an error, “the non-moving party bears
the burden of establishing that it is more probable than not that a properly
instructed jury would have reached the same verdict.” Frost v. BNSF Ry. Co., 914
F.3d 1189, 1194 (9th Cir. 2019) (cleaned up). However, we review “the
formulation of jury instructions for abuse of discretion in a civil case, considering
the instructions as a whole.” Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1074
(9th Cir. 2016).
In Bearchild I, we held that where a prison official had a legitimate
penological justification to initiate a search of an inmate, the inmate nonetheless
has a viable Eighth Amendment claim if he can prove that the official touched him
“in a sexual manner or otherwise engaged in sexual conduct for the staff member’s
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own sexual gratification, or for the purpose of humiliating, degrading, or
demeaning the prisoner.” Bearchild I, 947 F.3d. at 1144. This standard was fairly
set forth in Instruction 10, which was specifically cross-referenced in the first
question on the jury verdict form. The jury is presumed to have followed these
instructions. CSX Transp., Inc. v. Hensley, 556 U.S. 838, 841 (2009). Thus, even
assuming that the first question on the jury verdict form could have been more
artfully drafted, asking the jury whether “Defendant Larry Pasha act[ed] without
penological justification during the pat search of Plaintiff Dewayne Bearchild” did
not improperly require Bearchild to show that Pasha did not have a legitimate
reason to search him to prevail on his Eighth Amendment sexual assault claim.
Rather, in line with our holding in Bearchild I, the instruction cross-referenced by
the first question in the verdict form informed the jury that Bearchild needed to
prove only that the manner in which Pasha conducted the search was sexual or for
the purpose of humiliating Bearchild. Thus, the jury instructions and verdict form,
taken as a whole, properly instructed the jury on the law. Castro, 833 F.3d at
1074. The district court did not err in its formulation of the jury instructions.
The district court’s judgment entered upon the jury’s verdict in favor of
Pasha is AFFIRMED.
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