[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 18-11649 ________________________

D.C. Docket No. 9:17-cv-80883-DMM GILBERTO DEJESUS,

Plaintiff - Appellant,

versus

SERGEANT WILLIE J. LEWIS, INSPECTOR CHRISTOPHER DEAN CASTNER, each in his individual capacity,

Defendants - Appellees.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(September 21, 2021) USCA11 Case: 18-11649 Date Filed: 09/21/2021 Page: 2 of 60

Before MARTIN, ROSENBAUM, and LUCK, Circuit Judges. MARTIN, Circuit Judge:

Gilberto DeJesus says that in 2016, he was sexually assaulted by a prison official. That official, Sergeant Willie J. Lewis, responds that the assault never happened. Mr. DeJesus had an attorney to represent him in court, but shortly before trial, the District Court allowed counsel to withdraw. Mr. DeJesus was ill- prepared for trial because he had not been provided discovery materials. He was not given transcripts of the depositions taken in discovery until the morning of his trial, and tried to read through them—for the first time—during the morning break. Ultimately Mr. DeJesus presented only his own testimony to show the jury that the sexual assault he alleged he suffered amounted to cruel and unusual punishment. The jury ruled in favor of the Defendants.

On appeal, Mr. DeJesus argues the District Court made three errors. First, he says the District Court’s instruction to the jury about what he had to prove to succeed on his Eighth Amendment claim against Sergeant Lewis misstated the law and increased his burden of proof. Second, he claims the court should have granted his motion to continue the trial in order to allow him to prepare his case. Finally, he argues that exceptional circumstances warranted the appointment of counsel after his former attorney withdrew from representation.

2 USCA11 Case: 18-11649 Date Filed: 09/21/2021 Page: 3 of 60

We recognize that no trial can be perfect. However, this record reflects an error here that we must address in order to clarify the rules governing allegations of sexual assault made by prisoners. That is to say, at a minimum, when a prisoner proves that a prison official, acting under color of law and without legitimate penological justification, engages in a sexual act with the prisoner, and that act was for the official’s own sexual gratification, or for the purpose of humiliating, degrading, or demeaning the prisoner, the prison official’s conduct amounts to a sexual assault in violation of the Eighth Amendment. Here, no one disputes that the conduct alleged served no legitimate penological purpose, so the jurors should have been instructed that the only fact they had to find was whether the sexual assault occurred. On this record, however, Mr. DeJesus has not met his burden to show that any errors made during the trial of his case were likely to have resulted in an incorrect verdict. We therefore affirm the District Court’s order of final judgment in favor of Sergeant Lewis and Inspector Christopher Dean Castner.1

I. BACKGROUND A. THE INCIDENT

Mr. DeJesus, through counsel, filed suit in the U.S. District Court for the Southern District of Florida in July 2017. He alleged that on the morning of

1 Sergeant Lewis and Inspector Castner are both appellees, but Mr. DeJesus’s arguments on a