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Feb. 27, 2026 Get Citation Alerts Download PDF Add Note

Andrea Nielsen v. Richard Macleod

Court of Appeals for the Seventh Circuit

• Citations: None known
• Docket Number: 24-1696

• Judges: Hamilton

• Opinion

• Authorities (73)

• Cited By (0)

• Summaries (0)

• Similar Cases (70)

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Combined Opinion

                        by [David Frank Hamilton](https://www.courtlistener.com/person/1343/david-frank-hamilton/)

In the

United States Court of Appeals
For the Seventh Circuit

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Nos. 23-3060 & 24-1696
ANDREA NIELSEN,
Plaintiff-Appellee/
Cross-Appellant,

v.

TODD SEXTON, et al.,
Defendants-Appellants/
Cross-Appellees.

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Appeals from the United States District Court for the
Central District of Illinois.
No. 3:18-cv-03191-SEM-KLM — Sue E. Myerscough, Judge.

---

ARGUED SEPTEMBER 11, 2025 — DECIDED FEBRUARY 26, 2026

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Before EASTERBROOK, HAMILTON, and MALDONADO,
Circuit Judges.
HAMILTON, Circuit Judge. When defendant Richard
MacLeod was a counselor at Logan Correctional Center, an
Illinois women’s prison, he repeatedly sexually assaulted an
inmate in his custody, plaintiff Andrea Nielsen. Prison
investigator Todd Sexton and Warden Margaret Burke
2 Nos. 23-3060 & 24-1696

eventually learned of the assaults by a report from Nielsen’s
cellmate. Instead of protecting Nielsen from further assaults,
Sexton and Burke formulated an outrageous plan to use her
as unwitting “bait” to try to catch MacLeod in the act. The
plan was for Sexton to stay late a few times, crawl around in
the ceiling above the room MacLeod used to sexually assault
Nielsen, and wait to jump down and intervene. The plan
failed, and MacLeod assaulted her again.
Nielsen sued MacLeod, Sexton, and Burke under 42 U.S.C.
§ 1983 for violating her Eighth Amendment right to freedom
from cruel and unusual punishment—MacLeod by assaulting
her, and Sexton and Burke for failing to protect her from
MacLeod. The jury found that all three defendants were liable
and awarded Nielsen a total of $19.3 million in compensatory
and punitive damages.
MacLeod did not defend himself. He was defaulted and
has not appealed. Sexton and Burke defended the case, and
they raise several issues on appeal. On appeal, however, they
do not argue that Nielsen actually consented to any sex with
MacLeod, a concession that takes one potential defense theory
off the table. We affirm the district court’s denial of their
renewed motion for judgment as a matter of law attacking the
sufficiency of the evidence that they acted with deliberate
indifference after receiving a credible report that MacLeod
was sexually assaulting Nielsen. We also affirm the denial of
qualified immunity because no reasonable official could have
thought it proper to act as they did. We also affirm in part the
denial of their Rule 59 motion for a new trial on the basis of
erroneously excluded relevant evidence because that error
was harmless as to liability.
Nos. 23-3060 & 24-1696 3

We must, however, reverse in part on three grounds and
order a new trial on compensatory and punitive damages, but
not liability, against Sexton and Burke. First, the jury lacked
sufficient evidence to find Sexton and Burke liable for actions
taken before learning that MacLeod was sexually abusing
Nielsen. Second, the erroneous exclusion of evidence was not
harmless as to punitive damages. Third, the district court
erred by refusing to require the jury to determine by special
interrogatory when Sexton and Burke acted with deliberate
indifference. The timing is critical for assessing damages
against Sexton and Burke under Nielsen’s two theories of the
case. We also vacate and remand the attorney fee award for
reconsideration in light of the outcome of the new damages
trial.
I. Factual and Procedural Background
To the extent Sexton and Burke appeal the denial of
judgment as a matter of law, we relate the facts in the light
most favorable to the jury’s verdict. Matthews v. Wisconsin
Energy Corp., 642 F.3d 565, 567 (7th Cir. 2011). Facts are based
on the evidence admitted at trial except where otherwise
noted.
A. Logan’s Toxic Culture
In Nielsen’s words, “sexual abuse ran rampant” at Logan
Correctional Center. The data agree with her. Reported rates
of sexual abuse at Logan were the highest in the state among
women’s prisons and the second highest among all Illinois
prisons. Several staff members, not just MacLeod, were
caught sexually abusing inmates around the time of the
events of this case. Some were fired, criminally charged, or
both.
4 Nos. 23-3060 & 24-1696

Yet according to Nielsen, “nothing was ever done” about
it. A third-party investigation in early 2016 agreed. The
investigators reported:
During the assessment, some staff expressed
contempt for the women and
gender-responsive, evidence-based, and
trauma-informed approaches by stating that
they believe the women are worthless, crazy,
talk too much, and will never be anything more
than a convict. In some instances, they refer to
the women inmates as “animals”.
These beliefs contributed to prison staff not taking reports of
sexual abuse seriously. One of Nielsen’s expert witnesses said
the report made it apparent that the prevailing attitude
among staff was that “prisoners lie … if their mouth is
moving.”
B. MacLeod’s Sexual Abuse of Nielsen
MacLeod, a staff member in Logan’s Women and Family
Services Department, became Nielsen’s counselor in August
2016. That meant MacLeod was responsible for facilitating
Nielsen’s phone calls with her six-year-old daughter, a lifeline
to the outside world for which she had spent months securing
a court order and which meant “everything” to her. Because
Nielsen wanted to strengthen her connection with her
daughter, she jumped at the opportunity to take a “Healthy
Relationships” class taught by MacLeod. When Nielsen tried
to sign up, MacLeod made her come, alone, to his office in the
prison’s vocational building—a known “blind spot” at Logan
without security cameras—supposedly for a pre-enrollment
screening. There, he started talking about his own romantic
Nos. 23-3060 & 24-1696 5

relationships and then kissed her, which made her feel
“shocked” and “confused,” and then asked her if she would
tell anyone what he did. “Scared,” “nervous,” and aware that
MacLeod had “power over” her such that she did not “really
have a choice,” she said she would not tell.
MacLeod next summoned Nielsen to his office a few
weeks later, at which point he sexually assaulted her. That
began a months-long pattern of sexual abuse in which
MacLeod would summon Nielsen to his office for her phone
calls with her daughter and subject her to vaginal and oral sex.
When Nielsen “begged” him to wear a condom, he refused.
In Illinois and every other state, prison staff commit a
crime by having sex with an inmate, regardless of whether the
inmate supposedly consents. 720 Ill. Comp. Stat. 5/11-9.2(a) &
(d) (2025); Walton v. Nehls, 135 F.4th 1070, 1075, 1079 (7th Cir.
2025) (collecting statutes).
To coerce Nielsen into not reporting him, MacLeod
threatened her with “a year across the board.” That would
have meant a year of segregation—a solitary cell the inmate
rarely leaves, certainly not for phone calls, and with no family
pictures or personal letters—and then a year back in a regular
cell but with no programming or work, no commissary
privileges, and still no phone calls. MacLeod also told Nielsen
that Sexton was his friend and would “protect him and let him
know if anybody was on his trail.” Nielsen was asked at trial
whether she felt she “could or should” report the assaults. She
said: “There was no doubt in my mind that I couldn’t.”
The sexual abuse finally ended when Nielsen—who was
inexplicably stuck with MacLeod as her counselor even after
switching housing units—convinced another counselor to let
6 Nos. 23-3060 & 24-1696

her take her phone calls with him instead. MacLeod’s last
assault of Nielsen took place in February 2017.
C. The Hicks Report
On December 8, 2016, Nielsen’s cellmate at Logan, whom
we identify by only her surname Hicks, reported the sexual
abuse to Sexton. According to Sexton’s log of the interview,
Hicks told him that Nielsen told her that for the past “couple
months, maybe more,” MacLeod had been having
unprotected vaginal and oral sex with her when she would go
to the vocational building to make her court-ordered phone
calls to her daughter. Hicks said that MacLeod had refused to
use condoms despite Nielsen telling him he “needed” to do
so, claiming that smuggling them into the prison would be
“too risky.” Nielsen had gone the day before (a Wednesday)
in the afternoon, Hicks said, although she did not know what
occurred then. MacLeod also sometimes summoned Nielsen
on Saturdays to “help[] him out,” Hicks reported, although
she did not know what time of day that typically occurred.
The report, which we will call the “Hicks Report,” was
admitted into evidence and much of it read verbatim into the
trial transcript. One line was redacted and withheld from the
jury—that while Nielsen and Hicks were talking in the
shower about MacLeod, Nielsen started the conversation by
saying “I have to get freshened up for my man.” The redaction
of this “freshen up” statement is the focus of much of this
appeal.
D. Sexton and Burke Use Nielsen as “Bait”
Sexton testified at trial that he thought the Hicks Report
was credible because it laid out the motive, means, and
Nos. 23-3060 & 24-1696 7

opportunity for MacLeod to sexually abuse Nielsen. So that
same day he took it to Burke, who agreed with his assessment.
Typically, a report of custodial sexual abuse at Logan
would cause Sexton to separate the inmate and the staff
member by reassigning one or the other to another housing
unit pending an investigation. Sexton himself explained that
the inmate is entitled to receive “immediate protection” even
if the investigation ultimately produces no corroborating
evidence.
But Sexton did not separate MacLeod and Nielsen. Why?
In an offer of proof outside the presence of the jury, Sexton
claimed that he concluded based on the “freshen up”
comment that Nielsen was a “willing” participant in an
“agreed-upon relationship” with MacLeod. Nielsen, he
assumed, would tip off MacLeod if she became aware that
Sexton was looking into things, and he would never get the
evidence he needed for a criminal conviction. So, Sexton
testified, he changed his usual tactics. The jury did not hear
this testimony. The jury also did not hear excerpts from
Sexton’s deposition where he offered a different basis for this
belief about Nielsen’s supposed consent, said he in fact did
not know one way or the other, and all but admitted that his
supposed belief was a “rationalization” to make himself not
“feel bad.”
The jury did hear what Sexton did instead. He began by
interviewing potential witnesses, but not Nielsen or
MacLeod. Nor did he directly ask any witnesses about
MacLeod, instead leaving his questions open-ended. These
interviews yielded no “usable information” about MacLeod.
Apparently, Sexton instead directed his questioning
elsewhere; he was really looking into Hicks. Shortly after
8 Nos. 23-3060 & 24-1696

receiving the Hicks Report, he testified, he changed his mind
about Hicks’ credibility because he was told she was giving
information to gain a transfer to another housing unit.
Sexton finally spoke to Nielsen two weeks after the Hicks
Report. In that conversation, he also did not use MacLeod’s
name. He asked her only if she had “any problems with any
staff members or any issues you want to talk to me about.”
Recall that MacLeod had already warned Nielsen that Sexton
would protect him and had threatened her with two years of
harsh discipline if she told anything to anyone. Nielsen told
Sexton that there was nothing going on.
Having failed to corroborate the Hicks Report through his
interviews, Sexton turned to another strategy for gathering
evidence: he formulated a plan to use Nielsen as unwitting
“bait.” Sexton stayed late at the vocational building on three
random Wednesdays in December 2016 and January 2017,
hoping to catch MacLeod in the act of attempting to sexually
assault Nielsen. If that had happened, he testified, he would
have jumped in to intervene. Literally. On the first occasion,
he was hiding in the drop ceiling above the room. Burke
approved the plan.
The plan, of course, relied on MacLeod attempting to
sexually assault Nielsen again, and doing so on Sexton’s
schedule. Sexton and Burke knew that MacLeod had
“continuing and ongoing access” to Nielsen, could “easily”
assault her again, and could do so whenever he wanted,
practically 24/7. Either Sexton or Burke could have acted on
their own authority to prevent further assaults by separating
Nielsen and MacLeod. They chose not to, apparently because
it would have foiled their plan to use her as “bait.” The plan
Nos. 23-3060 & 24-1696 9

did not work, in any case. Sexton had given up the effort by
February, when MacLeod sexually assaulted Nielsen again.
E. Aftermath
MacLeod’s crimes came to light in August 2017 after
another correctional officer reported to Sexton that MacLeod
had been sexually harassing her for months. The officer said
that at one point MacLeod told her, “I am a stalker. I will find
out where you live. I may already know.” That same day,
Sexton spoke to Nielsen again, this time conducting a
structured interview and specifically using MacLeod’s name.
As soon as he did so, Sexton testified, he could tell from
Nielsen’s body language that something had been going on.
She soon told him about the abuse. Sexton had her belongings
packed up and later that day drove Nielsen from Logan to
another prison. A few days later, he emailed a former
colleague about Nielsen: “Yeah I will have to tell you about
the inmate I just took to Decatur Friday dealing with a certain
counselor haha it’s a good one.” Sexton referred Nielsen’s
report for a criminal investigation that led to a referral to the
county State’s Attorney, but MacLeod was never charged
with a crime.
Nielsen testified to the emotional harms she suffered at
Logan while subjected to MacLeod’s sexual abuse, including
feeling “hopeless” and “helpless,” “like nothing.” She
described her confusion over whether to report MacLeod,
what would happen if she did, and her fear from lacking “any
control over anything that happens to you.” At the time of
trial in 2023, well after her release from prison, Nielsen was
still experiencing the lasting effects of MacLeod’s sexual
abuse, including panic attacks, nightmares, flashbacks, and
trouble sleeping, all of which interfered with her ability to
10 Nos. 23-3060 & 24-1696

work. A psychiatric expert, Dr. Ann Burgess, testified that
Nielsen had suffered a “significant and serious injury”
characterized by “severe” trauma.
F. This Civil Lawsuit
In 2018, Nielsen filed this suit under Section 1983 against
MacLeod, Sexton, Burke, and other then-unidentified
defendants alleging violations of her Eighth Amendment
right to freedom from cruel and unusual punishment and her
First Amendment right to freedom from retaliation
(regarding the transfer to Decatur). MacLeod defaulted. After
discovery, Nielsen amended her complaint to name over
twenty other officials as additional defendants. 1
The district court granted summary judgment for all
defendants on the First Amendment claim and granted
summary judgment for the added defendants on Nielsen’s
Eighth Amendment claim. The court denied summary
judgment on the Eighth Amendment claims against Sexton
and Burke on the merits and on qualified immunity.
The district court also wrote in the order on summary
judgment that any potential defense that Nielsen supposedly
consented, or that Sexton and Burke believed she consented,
failed as a matter of law because “prisoners cannot consent to
sex with prison staff under any circumstances” given the
obvious “power disparity,” citing this court’s decision in J.K.J.
v. Polk County, 960 F.3d 367, 381–82 (7th Cir. 2020) (en banc).

1 The district court had originally granted Nielsen’s unopposed
motion to proceed under the pseudonym “Jane Doe,” but she used her
real name in the public trial. Her attorney agreed at oral argument that we
should use her real name in this appeal. See generally Doe v. Trustees of
Indiana University, 101 F.4th 485, 491 (7th Cir. 2024).
Nos. 23-3060 & 24-1696 11

Accordingly, the district court granted Nielsen’s motion in
limine to exclude any evidence of her supposed consent,
especially the “freshen up” comment.
Nielsen proceeded to trial against Sexton, Burke, and
MacLeod. Since MacLeod had defaulted, the case against him
was on damages only. The jury heard a series of factual
stipulations as to MacLeod (since he had defaulted),
including, essentially, that MacLeod had sexually assaulted
Nielsen in the manner she described. The district court
instructed the jury that these facts were not stipulated as to
Sexton and Burke. The district court denied Sexton and
Burke’s motion for judgment as a matter of law under Rule
50(a) at the close of Nielsen’s case-in-chief and again at the
close of all evidence.
To hold Sexton and Burke liable on her Eighth
Amendment failure-to-protect claim, Nielsen had to show
that she suffered serious harm from MacLeod’s abuse and
that Sexton and Burke contributed to causing that harm by
acting with deliberate indifference, meaning they were aware
of a substantial risk of serious harm and failed to take
reasonable measures to prevent it. See Dale v. Poston, 548 F.3d
563, 569 (7th Cir. 2008); Seventh Circuit Pattern Civil Jury
Instructions § 7.16 (2025).
Nielsen advanced two distinct theories of deliberate
indifference at trial. The first was based on Sexton and Burke’s
actions in “creating and failing to remedy general conditions
conducive to staff-on-prisoner abuse” that existed well before
August 2016, when MacLeod began assaulting Nielsen.
Appellee’s Br. at 24 (emphasis added). The second was that
Sexton and Burke, after receiving the Hicks Report in
December 2016, used Nielsen “as rape ‘bait’ rather than
12 Nos. 23-3060 & 24-1696

removing her from harm’s way.” The district court denied
Sexton and Burke’s motion to require the jury to determine
when they became liable (if it found liability) and the amount
of Nielsen’s damages caused by Sexton and Burke’s conduct
occurring after that time, which presents an issue we address
below.
The jury returned a general verdict, finding both Sexton
and Burke liable, fixing Nielsen’s compensatory damages at
$8 million, and awarding her $800,000 in punitive damages
against Sexton, $500,000 in punitive damages against Burke,
and $10 million in punitive damages against MacLeod.
The district court entered judgment accordingly. Then it
denied Sexton and Burke’s renewed motion for judgment as
a matter of law under Rule 50(b) or a new trial under Rule 59.
The district court later awarded Nielsen costs and over $2
million in attorney fees, around half of what she requested.
Sexton and Burke appealed the denial of their post-judgment
motions, and Nielsen cross-appealed certain downward
adjustments to the fee award. We consolidated the appeals
and later requested supplemental briefing on the effect of a
decision of another panel of this court dealing with an
indisputably consensual sexual relationship between an
inmate and a prison nurse, Walton v. Nehls, 135 F.4th 1070 (7th
Cir. 2025).
In Section II, we address Sexton and Burke’s challenges to
the sufficiency of the evidence against them. We conclude that
the evidence supported the verdict under Nielsen’s specific
theory of liability but not her general conditions theory. In
Section III, we reject Sexton and Burke’s claim of qualified
immunity on the specific theory of liability. In Section IV, we
conclude that the district court erred by excluding evidence
Nos. 23-3060 & 24-1696 13

of the “freshen up” comment, which was relevant to Sexton’s
state of mind. That evidence was relevant to both liability and
punitive damages against Sexton and Burke, but the exclusion
was prejudicial only as to punitive damages. Finally, in Part
V we conclude that the district court erred by refusing to
require the jury to determine by special verdict which of
Nielsen’s theories of liability it accepted because that question
was critical for determining damages against Sexton and
Burke. The bottom line is that a new trial is necessary on
damages alone.
II. Judgment as a Matter of Law on Deliberate Indifference
Sexton and Burke first challenge the sufficiency of the
evidence that they acted unreasonably both in failing to
address Logan’s toxic culture and after learning through the
Hicks Report of what they call in their brief a “possible
relationship” between Nielsen and MacLeod. Because they
moved for judgment as a matter of law under Rule 50(a) and
(b) in the district court, we consider de novo whether “a
reasonable jury would have ‘a legally sufficient evidentiary
basis to find for’” Nielsen, construing the evidence “strictly”
in her favor. Empress Casino Joliet Corp. v. Balmoral Racing Club,
Inc., 831 F.3d 815, 822 (7th Cir. 2016), quoting first Fed. R. Civ.
P. 50(a)(1), and then Passananti v. Cook County, 689 F.3d 655,
659 (7th Cir. 2012). 2

2 We return to the excluded evidence in Part III, where we evaluate

Sexton and Burke’s arguments for qualified immunity. See Danenberger v.
Johnson, 821 F.2d 361, 363 (7th Cir. 1987) (noting Rule 59(e) can be proper
vehicle for considering qualified immunity).
14 Nos. 23-3060 & 24-1696

A. Nielsen’s Burden of Proof
The district court instructed the jury that Nielsen needed
to prove four elements to establish her Eighth Amendment
failure-to-protect claim:
1. There was a strong likelihood that Plaintiff
would be seriously harmed as the result of an
assault or assaults.
2. The Defendant under consideration was
aware that Defendant MacLeod would
seriously harm a prisoner in Plaintiff’s situation
or strongly suspected that Plaintiff would be
seriously harmed but refused to confirm
whether these facts were true. You may infer
this from the fact that the risk was obvious.
3. The Defendant under consideration
consciously failed to take reasonable measures
to prevent the assault or assaults.
In deciding this, you may consider how serious
the potential harm to Plaintiff was and how
difficult it would have been for the Defendant
under consideration to take corrective action.
4. Plaintiff would not have been harmed, or
would have suffered less harm, if the defendant
under consideration had taken reasonable
measures.
This instruction was consistent with Seventh Circuit Pattern
Civil Jury Instructions § 7.16 (2025), and with Ortiz v. Jordan,
562 U.S. 180, 190–91 (2011), and Farmer v. Brennan, 511 U.S.
825, 832–33, 837, 842 (1994).
Nos. 23-3060 & 24-1696 15

The first element was essentially uncontested, given
Nielsen’s unrebutted testimony about her injuries. The
second and third elements set forth the deliberate indifference
standard. The actual knowledge element requires that “the
official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists,
and he must also draw the inference.” Farmer, 511 U.S. at 837.
The adequacy of the official’s response is evaluated “in light
of the surrounding circumstances,” particularly the official’s
knowledge of the threat at the time he acted or could have
acted, not whether the threat actually materializes. Dale v.
Poston, 548 F.3d 563, 569 (7th Cir. 2008). The fourth element,
causation, is evaluated in line with ordinary tort principles
and requires both factual and proximate causation. Whitlock
v. Brueggemann, 682 F.3d 567, 582–83 (7th Cir. 2012). With
these standards in mind, we turn to the evidence.
B. Sexton and Burke’s Actual Knowledge of the Hicks Report
We address Nielsen’s specific theory of liability first. As
Nielsen points out, Sexton and Burke appear to concede the
actual knowledge element here. They argue in this section of
their brief only that a reasonable jury could not have found
that they acted unreasonably. The parties, however,
characterize the content of this knowledge quite differently:
Nielsen as Sexton and Burke knowing sexual abuse
“occurred,” and Sexton and Burke as their knowing of only
“a possible relationship.” Appellee’s Br. at 25; Appellants’ Br.
at 28. The difference matters. The jury had a sufficient basis to
find that both Sexton and Burke were actually aware of a
strong likelihood that MacLeod was in fact sexually abusing
Nielsen, coercing her into sex in an unmonitored location
16 Nos. 23-3060 & 24-1696

practically any time he wished by controlling Nielsen’s access
to her daughter and by threatening retaliatory punishment.
1. Sexton
The critical evidence of Sexton’s actual knowledge is the
Hicks Report and Sexton’s own testimony about it. Sexton
personally interviewed Hicks on December 8, 2016, prepared
the report, and signed each page. Some of what he had written
was read to the jury, including that the abuse had been going
on for a “couple of months, maybe more,” that it had occurred
when Nielsen made her phone calls to her daughter, that
MacLeod was not using condoms, and that they were
engaging in vaginal and oral sex.
Sexton testified that he thought the Hicks Report was
credible because “MacLeod had the means, motive, and the
opportunity to [sexually] abuse” Nielsen repeatedly. Sexton
further conceded he knew that MacLeod “refused” after
Nielsen “begged” him to use a condom, putting Nielsen at
risk of pregnancy and sexually transmitted disease. He also
conceded he knew MacLeod had “continuing and ongoing
access” to Nielsen and could “easily” sexually abuse her
again. Sexton also conceded he knew MacLeod could sexually
abuse Nielsen whenever he wanted, “day or night,”
practically 24/7 other than at count times. In fact, Sexton
conceded that Hicks told him that MacLeod had summoned
Nielsen the night before her report.
Sexton also conceded he knew that the vocational building
was a “potential hot spot” for sexual abuse because of the lack
of cameras and spotty staffing outside the regular hours of
Monday to Friday, 7 am to 3 pm. Sexton further conceded he
Nos. 23-3060 & 24-1696 17

knew this situation created “significant safety issues,”
namely, the risk of staff-on-inmate sexual abuse.
Sexton also conceded he knew MacLeod had “significant
power and control” over all inmates at Logan, that is, the
power to “make inmates do what he wanted” or else “face
punishment.” Sexton conceded as well that he knew MacLeod
had particular levers to use against inmates with families,
including access to programming and even for some, like
Nielsen, access to their children. Finally, Sexton conceded that
he knew these factors made Nielsen especially vulnerable to
sexual abuse:
Q. Can you understand how a female prisoner,
someone who relied on Defendant MacLeod to
call her child, would have no ability, would feel
afraid to fight him off in this scenario? Do you
get that?
A. Yes.
This evidence was sufficient to establish that Sexton knew of
at least a strong likelihood that MacLeod was coercing
Nielsen into sex, not just that there was a “possible
relationship.”
2. Burke
Defendant Burke testified that she was “made aware that
a third party had reported stuff was happening” to Nielsen.
When pressed, she said she was aware of more details:
Q. Stuff?
A. Sorry, I will say sexual assault.
18 Nos. 23-3060 & 24-1696

Q. Sexual assault, that’s right. It’s hard to say;
isn’t it?
A. It is, mm-hmm.
Burke also conceded that she thought there might be “validity
to the allegations.” In fact, Sexton testified that he read the
Hicks Report out loud to Burke in its entirety and offered her
his conclusions, including that the abuse “could easily
happen again.” Burke also conceded, like Sexton, that she
knew the vocational building was a “blind spot.” And she
conceded she knew MacLeod could summon an inmate there
without supervision by other staff members, cameras, or even
documentation of the inmate’s movement. Finally, Burke, like
Sexton, conceded she knew that sexual abuse threatened
inmates’ (and everyone’s) safety.
Burke’s own testimony was sufficient to establish her
actual knowledge, not just of a “possible relationship,” but of
a strong likelihood that MacLeod was coercing Nielsen into
sex.
C. Sexton and Burke’s “Bait” Plan
The jury also had a sufficient basis to find that Sexton and
Burke each acted unreasonably after receiving the Hicks
Report. In particular, their plan to use Nielsen as unwitting
“bait” left her vulnerable to further sexual assaults by
MacLeod. It also forwent other potential avenues of gathering
evidence.
1. Expert Testimony on Prison Rape
The jury heard expert testimony from Dr. Brenda Smith, a
law professor and member of the National Prison Rape
Elimination Commission, which was created by the Prison
Nos. 23-3060 & 24-1696 19

Rape Elimination Act of 2003 and tasked with developing “a
set of standards that deal with the prevention, detection,
punishment, [and] investigation of sexual victimization in
custodial settings.” Congress enacted a special law for
prisons, Dr. Smith explained, because of the high prevalence
of custodial rape and the “huge power differential between
prisoners and staff,” prison being “a closed environment”
where staff “control everything that goes on” while an inmate
“control[s] nothing.” Among the purposes of the Act, Dr.
Smith told the jury, was to make clear that “there is no
acceptable amount of sexual victimization in custody,” as
“zero tolerance means zero.” Dr. Smith explained that the Act
and its implementing regulations apply to both state and
federal facilities. See 34 U.S.C. §§ 30307 (e)(2), 30309(7); 28
C.F.R. § 115.5 (2025).
The jury heard excerpts from a training document under
the Act outlining steps for prison officials to take when they
receive any reports of custodial sexual abuse:
Staff shall report and respond to allegations of
sexual abuse regardless of the source of the
report; for example, third party.
If observed, verbally reported, or through
written report, all allegations are handled the
same and taken seriously.
One, separate; two, offer protection; three, treat
area as a crime scene; four, report to the shift
supervisor; and five, document.
Dr. Smith elaborated that “separate” means “separate the
person from the offender” to “prevent additional harm,” that
“offer protection” means to assure the possible victim that she
20 Nos. 23-3060 & 24-1696

or he is “not going to be harmed anymore,” and that to “treat
the area as a crime scene” means to gather evidence from the
place the abuse occurred and from the victim.
Asked what exactly Sexton should have done after he took
the Hicks Report, Dr. Smith answered in line with those steps,
including that he should have “taken [Nielsen] out for a rape
kit.” Asked if she agreed that Sexton “did exactly what he was
supposed to do,” she answered, “I do not.” 3

3 In reviewing Dr. Smith’s testimony, we are not equating the Act’s

requirements with the constitutional standard for an Eighth Amendment
failure-to-protect claim of custodial sexual abuse. Federal and state
statutes, regulations, and departmental policies do not set constitutional
standards, but parties in constitutional cases may present evidence on
such matters, including expert testimony, where relevant to establishing
standards of care (or the use of force) on matters outside the ordinary
knowledge of a layperson. See Seventh Circuit Pattern Civil Jury
Instructions § 7.04 (2025); J.K.J. v. Polk County, 960 F.3d 367, 379, 384 (7th
Cir. 2020) (en banc) (custodial sexual abuse claim against municipality:
affirming jury verdict and noting jury could have credited expert
testimony in finding that county’s “policy deficiency affirmatively
deterred the reporting and detection of sexual abuse of female inmates”);
United States v. Brown, 871 F.3d 532, 534, 536–38 (7th Cir. 2017) (criminal
prosecution for excessive force in violation of Fourth Amendment:
“Expert testimony … may be relevant in cases where specialized
knowledge of law-enforcement custom or training would assist the jury
in understanding the facts or resolving the contested issue.”). Other courts
have endorsed similar evidence and reasoning. E.g., Pearson v. Prison
Health Service, 850 F.3d 526, 536 (3d Cir. 2017) (Eighth Amendment
medical care claim: “[M]edical expert testimony may be necessary”—not
just permissible—“to establish deliberate indifference in an adequacy of
care claim where, as laymen, the jury would not be in a position to
determine that the particular treatment or diagnosis fell below a
professional standard of care.”); Cook ex rel. Estate of Tessier v. Sheriff of
Monroe County, 402 F.3d 1092, 1111–12, 1115 (11th Cir. 2005) (Fourteenth
Amendment claim for pretrial detainee’s suicide: affirming exclusion of
Nos. 23-3060 & 24-1696 21

Dr. Smith also testified to the unreasonableness of what
Sexton and Burke did without relying on the Act’s standards.
First, she explained that briefly questioning Nielsen in general
terms was inadequate because it was not “an investigation
tactic designed to elicit information.” Next, she explained that
trying to catch a perpetrator in the act is not an “appropriate
approach” because it “creates the conditions for the victim to
be revictimized” and “sort of treats the victim as … a bad
person, a malefactor.” Nor, in Dr. Smith’s view, was Sexton
staying late “a few times” a reasonable way of implementing
his plan:
Q. And in your experience, is that an
appropriate response to this kind of report?
A. You know, it is a tactic, but it was not
effective combined with anything else. Was
there a plan? Was there any other information
that you thought you were going to gain by just
staying late to see what would happen?
2. Sexton and Burke’s Testimony
Sexton and Burke each testified to several factors the jury
was entitled to consider in evaluating the reasonableness of
their actions. We review that testimony here.
Sexton conceded that after a report of custodial rape, the
reported victim and offender typically would be separated

expert testimony partly because expert failed to testify to “any generally
accepted standard of care for dealing with suicidal inmates”); Kopf v.
Skyrm, 993 F.2d 374, 378–79 (4th Cir. 1993) (Fourth Amendment excessive
force claim: reversing jury verdict for defendants because district court
erroneously excluded expert testimony on proper use of police canines
and “slapjacks”).
22 Nos. 23-3060 & 24-1696

because the victim is entitled to “immediate protection” even
in a “he-said, she-said” situation. This did not happen for
Nielsen. Sexton conceded he had the authority to move
Nielsen away from MacLeod to another housing unit
“immediately.” Burke also conceded that she could have
prevented further unsupervised meetings between MacLeod
and Nielsen without needing “any further resources” but did
not do so. In other words, Sexton and Burke each had the
power to protect Nielsen. They both chose not to.
Sexton conceded that his December 2016 interview of
Nielsen, which took place (he estimated) two weeks after the
Hicks Report, consisted of only “broad questions” asking if
she had “problems with any staff members.” Sexton conceded
that when he finally conducted the type of interview
contemplated by the Act and Dr. Smith’s testimony, with
more pointed questions, Nielsen told him about MacLeod.
Sexton conceded that instead of separating Nielsen from
MacLeod and conducting a controlled interview of Nielsen,
he developed a plan to catch MacLeod in the act of sexually
abusing her, using Nielsen as unwitting “bait.” Originally the
plan was to “crawl around in the ceiling and see if [he] could
peek through the vents to catch [MacLeod] in the act,” though
he quickly switched to other methods, namely standing
outside the office and watching through the windows. Sexton
claimed that if the plan had worked, he would have
intervened before the sexual assault could occur. He
estimated he did three of these “stakeouts.” Sexton then
offered a defense of his tactics:
Q. … One of your three unsuccessful,
completely undocumented, ludicrous attempts
to catch a sexual predator in the act of calling a
Nos. 23-3060 & 24-1696 23

helpless person he had control over to him at
night, and your plan was to jump out of the
bushes and stop him from committing another
rape of my client? I’m just trying to understand
what’s happening here.
A. I’m trying to build a criminal case against a
staff member.
Sexton testified that Burke approved the plan. Burke
conceded the same. She testified that she “did my best” but
also implied she would have done things differently if given
another chance:
Q. Leaving Ms. Nielsen such that she could be
commanded to visit Defendant MacLeod at any
time between December of 2016 and August of
2017, was doing their best to protect her?
A. Hindsight is 20/20.
3. Analysis
Sexton and Burke argue that because Sexton “did not
ignore the risk of harm to [Nielsen], but instead sought to
substantiate Hicks’s allegations,” no reasonable jury could
find that he acted with deliberate indifference. We assume the
argument extends to Burke as well, since she ratified Sexton’s
plan. They cite our case law to the effect that “[m]ere
negligence or even gross negligence does not constitute
deliberate indifference,” and that “the mere failure of the
prison official to choose the best course of action does not
amount to a constitutional violation.” See Snipes v. DeTella, 95
F.3d 586, 590 (7th Cir. 1996); Peate v. McCann, 294 F.3d 879, 882
(7th Cir. 2002).
24 Nos. 23-3060 & 24-1696

Where a prison official has actual knowledge of a
substantial risk of serious harm to an inmate, the plaintiff
must prove the official “disregard[ed] that risk by failing to
take reasonable measures to abate it.” Farmer, 511 U.S. at 847;
accord, e.g., Hunter v. Mueske, 73 F.4th 561, 566 (7th Cir. 2023)
(“measures reasonably calculated to address the risk”); Gevas
v. McLaughlin, 798 F.3d 475, 480 (7th Cir. 2015) (“adequate
response to the threat”). On a Rule 50 motion for judgment as
a matter of law, the issue is whether a reasonable jury could
find that the defendants’ actions were unreasonable.
This inquiry should avoid the distortions of hindsight and
must give “due regard for prison officials’ ‘unenviable task of
keeping dangerous men’”—and dangerous women, and non-
dangerous men and women, and in juvenile prisons,
children—“‘in safe custody under humane conditions.’”
Farmer, 511 U.S. at 844–45, quoting Spain v. Procunier, 600 F.2d
189, 193 (9th Cir. 1979) (Kennedy, J.); see also Bell v. Wolfish,
441 U.S. 520, 547 (1979) (“[T]he problems that arise in the day-
to-day operation of a corrections facility are not susceptible of
easy solutions.”). Nielsen did not “have a constitutional right
to ‘the most intelligent, progressive, humane, or efficacious
prison administration.’” Hunter, 73 F.4th at 567, quoting
Anderson v. Romero, 72 F.3d 518, 524 (7th Cir. 1995).
Nielsen did, however, have the right not to be used
unwittingly as bait for a sexual predator. A reasonable jury
could have concluded that Sexton and Burke acted
unreasonably in three ways based on what they failed to do:
(1) Failed to move Nielsen to another housing
unit in line with standard protocol, thereby
allowing MacLeod to continue summoning her
Nos. 23-3060 & 24-1696 25

to a private, unmonitored location to assault her
whenever he wished.
(2) Failed to interview Nielsen in a timely and
structured manner designed to elicit useful
information to substantiate or refute the
allegation, instead waiting a full two weeks
after the Hicks Report to speak with her and
even then asking her only in general terms if she
had anything to report.
(3) Failed to order immediately a rape kit on
Nielsen and to treat the vocational building as a
crime scene, leading to the loss of potential
evidence against MacLeod, which Sexton
claimed he needed to gather.
In addition to the evidence of these failings, a reasonable jury
could have concluded that what Sexton and Burke actually
did was unreasonable. Staying late on three random
Wednesdays and hiding in the ceiling to catch MacLeod in the
act was both unlikely to work and likely to revictimize
Nielsen if it did.
Sexton and Burke’s argument to the contrary is that the
investigatory steps Sexton took show they did not ignore the
risk of harm to Nielsen but instead tried to substantiate Hicks’
allegations. But Nielsen did not need to show that Sexton and
Burke completely ignored the risk to her. The Eighth
Amendment standard requires not merely some response,
but a reasonable one. For example, we have held that a jury
could find a prison official acted unreasonably in telling an
inmate that he could obtain a new cell assignment to get away
from a threatening cellmate by committing a disciplinary
26 Nos. 23-3060 & 24-1696

infraction with a punishment of thirty days of segregation.
Gevas, 798 F.3d at 478–79, 482–83 (reversing judgment as a
matter of law for defendants). Nor is standing back from an
ongoing assault and telling a detainee to “learn how to fight
harder or don’t come to jail” a reasonable course of action. See
Grieveson v. Anderson, 538 F.3d 763, 778–79 (7th Cir. 2008)
(reversing summary judgment for defendants). Likewise for
investigating and substantiating a transgender inmate’s
repeated complaints of rape and sexual harassment by staff
and fellow inmates without taking any steps to prevent future
attacks. See Tay v. Dennison, 457 F. Supp. 3d 657, 671–72, 685–
87 (S.D. Ill. 2020) (granting preliminary injunction). We reject
Sexton and Burke’s sufficiency challenges as to Nielsen’s
specific theory of liability.
D. Nielsen’s General Conditions Theory of Liability
By contrast, we sustain Sexton and Burke’s sufficiency
challenge as to Nielsen’s general conditions theory of liability.
Sexton and Burke each conceded they had actual knowledge
of Logan’s toxic culture. Sexton admitted to knowing that
“sexual misconduct was rampant” and that multiple staff
members had been “charged or convicted or fired or
resigned” after sexually abusing inmates. Burke, for her part,
admitted to knowing that Logan had a “major cultural
problem,” with reports of staff-on-inmate abuse “increasing.”
We assume without deciding that these concessions are
enough to establish Sexton and Burke’s actual knowledge of
a substantial risk of serious harm to Nielsen and many other
inmates at Logan. However, Nielsen did not offer sufficient
evidence for a jury to find that Sexton took unreasonable
actions that caused her injuries between August and
Nos. 23-3060 & 24-1696 27

December 2016 or that Burke acted unreasonably during that
time.
1. Sexton
To show Sexton acted unreasonably, Nielsen points to his
concessions that “[n]obody was doing anything about the
toxic, sexually-charged, and disgusting culture at Logan,
including [him],” that he was “part of the toxic culture,” that
he did not always follow the Prison Rape Elimination Act to
the letter even before the Hicks Report, and that it was his
standard practice never to substantiate “he-said, she-said”
allegations without further evidence. Assuming (without
deciding) that these statements are enough to establish Sexton
acted unreasonably, Nielsen still did not establish causation,
which is an essential element of her claim. Whitlock, 682 F.3d
at 582–83; Seventh Circuit Pattern Civil Jury Instructions
§ 7.16 (2025).
The closest Nielsen comes is testimony from another
inmate at Logan, referred to at trial as Jane Doe No. 1, that
MacLeod also sexually abused her and two others much as he
later abused Nielsen. But Jane Doe No. 1 never reported
MacLeod to Sexton, and Nielsen identifies no other basis for
Sexton to have zeroed in on MacLeod before December 2016.
So even if Sexton had challenged Logan’s toxic culture or
adequately investigated other staff members, concluding that
these steps would have caused MacLeod not to abuse Nielsen
between August and December 2016 would call for
conjecture. See Lapre v. City of Chicago, 911 F.3d 424, 435 (7th
Cir. 2018) (affirming summary judgment for defendant in jail
suicide case in part because plaintiff “has presented little
more than speculation in support of causation”).
28 Nos. 23-3060 & 24-1696

1. Burke To show Burke acted unreasonably, Nielsen points to her concessions that she failed to remedy Logan’s blind spots, including the vocational building, despite having the resources necessary to do so, and that she allowed counselors to meet with inmates one-on-one. The second contention is easily dismissed. We decline to hold that failing to prohibit any and all one-on-one meetings between adult inmates and staff members about whom the warden has no particular reason to harbor suspicions is so unreasonable as to violate the Eighth Amendment. Such policies may be sensible in some contexts, but the Eighth Amendment “does not require the most intelligent, progressive, humane, or efficacious prison administration.” Anderson, 72 F.3d at 524; see also McKenzie v. U.S. Tennis Ass’n, No. 22-cv-615, 2024 WL 3849884, at *6 (M.D. Fla. Aug. 16, 2024) (noting “rule of three” prohibiting one-on-one coaching in a private setting in youth sports). Burke’s failure to remedy Logan’s blind spots is a closer call. Early in her tenure as warden, Burke and her subordinates mapped out the prison’s existing cameras and locations where additional cameras would be appropriate, and she requested and received funding for the project. After the cameras arrived, she met weekly with the prison’s chief engineer for status updates on ongoing facilities and maintenance projects, including camera installation. But “every week” the engineer “would have an explanation” for why no progress had been made on the camera project, primarily that his electrician was working on something else. Logan had no other electricians available, and Burke could not install them herself, so the project stalled. As it turned out, Nos. 23-3060 & 24-1696 29

the electrician was intentionally slow-walking the camera
project because he, too, was taking advantage of Logan’s
blind spots to sexually abuse inmates. 4
During trial, jurors asked several questions about the
camera project and the electrician. They specifically asked
Burke if she kept “requesting cameras be installed after [the]
first initial delay.” She testified that she had. True, Burke
conceded immediately after that exchange that it was “my job
to ensure those things were done” to protect inmates, and that
on her watch as warden, “those cameras never went up.”
Still, we cannot judge the reasonableness of her efforts
solely by the fact that they were ultimately unsuccessful. Dale,
548 F.3d at 569. Burke identified the problem, secured
resources to remedy it, and periodically followed up with her
subordinates about it. The subordinate responsible made sure
installation did not happen so he could further his own
criminal purposes. Even as warden, Burke may be held liable
under Section 1983 only for her own actions, not those of
others. See Hunter, 73 F.4th at 566–67 (concluding that
correctional officer acted reasonably in helping inmate fill out
complaints since he did not know his supervisor would
ignore them). Nielsen did not introduce evidence from which
a reasonable jury could have concluded that Burke herself
acted unreasonably with respect to the camera project. Thus,

4 He was discovered, fired, and criminally prosecuted after concerns

about the delay prompted an investigation. The trial record is sparse on
details about the timing of these events, but Sexton testified that the
electrician was “involved in installing cameras” for the “entire time”
Sexton worked at Logan. The electrician was not charged until well after
December 2016.
30 Nos. 23-3060 & 24-1696

a reasonable jury could not have found that either Sexton or
Burke was liable under Nielsen’s general conditions theory.
III. Denial of Qualified Immunity
We next address Sexton and Burke’s argument that they
are entitled to qualified immunity as a matter of law on
Nielsen’s specific theory of liability. We address this defense
separately from the sufficiency of the trial evidence because
their defense relies on evidence the district court excluded at
trial. 5
The availability of a qualified immunity defense is often a
question of law that we review de novo. Smith v. Finkley, 10
F.4th 725, 734 (7th Cir. 2021). Even so, after a jury trial, “we
are bound by the jury’s resolution of disputed factual issues.”
Frazell v. Flanigan, 102 F.3d 877, 886 (7th Cir. 1996), abrogated
on other grounds as recognized by McNair v. Coffey, 279 F.3d
463, 464–65 (7th Cir. 2002). Since the Supreme Court’s
decision in Saucier v. Katz, 533 U.S. 194, 200 (2001), abrogated

5 The Supreme Court has written that when Section 1983 defendants

“continue to urge qualified immunity” even after a full trial on the merits,
“the decisive question, ordinarily, is whether the evidence favoring the
party seeking relief is legally sufficient to overcome the defense.” Ortiz v.
Jordan, 562 U.S. 180, 184 (2011) (emphasis added). Because Sexton and
Burke’s qualified immunity arguments rely on evidence that the district
court did not admit at trial—specifically, Sexton’s offer of proof, including
the “freshen up” comment—this is the rare case where Rule 50(b) may not
be the proper vehicle for considering qualified immunity after trial. A Rule
50(b) motion “must be determined on the basis of the evidence the trial
judge admitted and the jury considered.” LNC Investments, Inc. v. First
Fidelity Bank, 126 F. Supp. 2d 778, 785 (S.D.N.Y. 2001); see also 9B Wright
& Miller, Federal Practice and Procedure § 2529 (3d ed. 2025). If a defendant
seeks relief after trial based on evidence excluded from trial, Rule 59 offers
a better path.
Nos. 23-3060 & 24-1696 31

on other grounds by Pearson v. Callahan, 555 U.S. 223, 236
(2009), that deference does not extend to the ultimate finding
of reasonableness. Rather, deference is given only to the
“disputed ‘foundational’ or ‘historical’ facts that underlie” the
qualified immunity determination, Acosta v. City & County of
San Francisco, 83 F.3d 1143, 1147 (9th Cir. 1996), or in other
words, “the who-what-when-where-why,” Cottrell v. Caldwell,
85 F.3d 1480, 1488 (11th Cir. 1996). See McNair, 279 F.3d at 466
(“We assume that the jury resolved all factual disputes in the
McNairs’ favor. Juries are not authorized, however, to
determine the substance of the Constitution.”).
The who, what, when, and where of this case, outside of
Sexton’s and Burke’s minds, are not materially disputed on
appeal. Sexton and Burke no longer contend that Nielsen
might actually have consented to sex with MacLeod. See
Appellants’ Br. at 40–42; Appellants’ Supp. Br. at 6. The
parties disagree primarily on the why—whether Sexton and
Burke acted as they did because they thought Nielsen was a
“willing” participant in an “agreed-upon relationship” with
MacLeod—and whether that why matters. The why is a
disputed foundational or historical fact, but we cannot infer
what the jury found about the why because the district court
barred Sexton from testifying about it.
Our decision in Walton v. Nehls, 135 F.4th 1070 (7th Cir.
2025), addressed wholly voluntary sex between an inmate
and a prison staff member. Walton shows there can be cases
where evidence of an inmate’s genuine consent may be
relevant in evaluating an official’s response. After reviewing
the excluded evidence, however, we conclude that the why
does not matter in this case for qualified immunity purposes.
Sexton and Burke’s actions would have been unreasonable as
32 Nos. 23-3060 & 24-1696

a matter of law even if they thought that Nielsen was a willing
participant in MacLeod’s sexual abuse.
A. Clearly Established Duties of Prison Officials
At all times relevant to this case, the law was clearly
established that “a prison official may be held liable under the
Eighth Amendment for denying humane conditions of
confinement only if he knows that inmates face a substantial
risk of serious harm and disregards that risk by failing to take
reasonable measures to abate it.” Farmer v. Brennan, 511 U.S.
825, 847 (1994). It was also clearly established that the use of
force is not required: “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.” Washington v. Hively, 695 F.3d 641, 643
(7th Cir. 2012). And it was clearly established that the same
standard applies in sexual abuse cases, whether the threat
comes from other inmates or, as in this case, from prison staff.
See Farmer, 511 U.S. at 830 (assault by another inmate); Ortiz
v. Jordan, 562 U.S. 180, 190 (2011) (case alleging failure to
protect from prison guard: “[T]he pre-existing law was not in
controversy.”).
B. Walton and Wholly Voluntary Sex Between Inmates and
Staff
Sexton and Burke rely on Walton, where we addressed an
Eighth Amendment claim for custodial sexual abuse on an
unusual factual record. The plaintiff in Walton had a
“romantic and sexual relationship” with a prison nurse and
“testified in his deposition that the relationship was
consensual.” 135 F.4th at 1071–72. In fact, the plaintiff had
Nos. 23-3060 & 24-1696 33

“always described the relationship” in such terms. Id. at 1072.
Though recognizing the “inherently coercive prison
environment,” the “inherently vulnerable position of
prisoners,” and that “unwanted sexual conduct, regardless of
whether it involves force, is objectively harmful under the
Eighth Amendment,” we declined in Walton to adopt a “per se
nonconsent rule.” Id. at 1073–79. Such a rule, we said, would
“run counter to” Supreme Court case law by “broadly and
indeed categorically expanding Eighth Amendment liability
in one fell swoop—without regard to the unique factual
circumstances that could arise in future cases.” Id. at 1075. We
also declined to adopt a presumption of nonconsent because
the evidence there overcame any such presumption. We
concluded that “we cannot on this record say that [the
defendant] knew of and was deliberately indifferent to an
excessive risk that her conduct would seriously harm
[plaintiff].” Id. at 1079. Thus, Walton’s holding was a narrow
one: wholly voluntary sexual conduct between an inmate and
staff member is not “sufficiently serious” or “objectively
harmful” enough to violate the Eighth Amendment. See id. at
1072. 6

6 No federal court of appeals has recognized an Eighth Amendment

cause of action for a wholly voluntary sexual relationship between an
inmate and a staff member, though some district courts have done so. E.g.,
Carrigan v. Davis, 70 F. Supp. 2d 448, 453, 459–61 (D. Del. 1999); Chao v.
Ballista, 806 F. Supp. 2d 358, 381–83 (D. Mass. 2011). We appear to have
first raised the possibility of a consent defense to Section 1983 claims for
custodial sexual abuse in J.K.J. v. Polk County, where we wrote of the officer
who committed the custodial rapes:
[The perpetrator’s] only defense was to try somehow to
persuade the jury that J.K.J. and M.J.J. consented to the
sexual relations. The effort failed …. If the jury had
34 Nos. 23-3060 & 24-1696

Walton did not hold, however, that a prison official
charged with investigating custodial sexual abuse may act as
if the relationship is wholly voluntary until proven otherwise.
Walton did not hold that a prison official who actually draws
the inference of a substantial risk of coercive sexual conduct
may avoid liability because she also suspects that it might be
non-coercive—in other words, when she is not sure one way
or the other. In summary, Walton does not affect a prison
official’s duty to respond to a report of sexual conduct that the
official recognizes contains both indicia of voluntariness and
indicia of coercion.
C. Excluded Evidence
Because we must consider the excluded evidence in
evaluating Sexton and Burke’s claim of qualified immunity,
see Fox v. Hayes, 600 F.3d 819, 836–37 (7th Cir. 2010), we
review that evidence here. Sexton and Burke repeatedly refer
to (mostly unspecified) “evidence of consent.” The choice of
words is misplaced. They do not contend that the excluded
evidence showed that Nielsen actually consented to sex with
MacLeod. Rather, they focus their challenge on whether they
believed she had consented. The theory is that this evidence
“went to their subjective knowledge and would have allowed
them to explain why they conducted the investigation in the
way that they did.” Appellants’ Br. at 40–41. Accordingly, the

bought [his] story that J.K.J. and M.J.J. were willing
participants (and, for that matter, even capable of being
willing participants under the circumstances), it would
have found that the women had not met their evidentiary
burdens of proving that he acted with deliberate
indifference to their safety and well-being.
960 F.3d 367, 376 (7th Cir. 2020) (en banc).
Nos. 23-3060 & 24-1696 35

only evidence of Nielsen’s supposed consent that could be
relevant to their qualified immunity defense are facts that
Sexton and Burke knew before February 2017, as well as
testimony about their respective states of mind during that
time. So the only additional documentary evidence we
consider is the “freshen up” comment because it came to their
attention in December 2016. We do not consider any
documents related to any later investigation.7
Sexton testified in his offer of proof that he believed
Nielsen was a “willing” participant in an “agreed-upon
relationship” with MacLeod. Dr. Smith (the expert on
preventing prison rape) testified in a counteroffer of proof
about portions of Sexton’s deposition testimony relevant to

7 At trial, Sexton and Burke also made an offer of proof with evidence

from an Illinois State Police investigation of MacLeod conducted many
months later, in August 2017. An investigator interviewed Nielsen and
ultimately concluded that MacLeod had committed custodial sexual
misconduct. The case was forwarded to county prosecutors, but they
chose not to pursue criminal charges. The defendants in this civil case
wanted to offer several statements Nielsen made to the investigator that
might have offered some support for an argument that Nielsen
“consented” to the sex with MacLeod. Nielsen told the investigator that
MacLeod did not use force and she did not physically resist him. The
district court excluded that evidence because of the court’s view that
consent could not be a defense here. On appeal, as noted, Sexton and
Burke have dropped any claim that Nielsen voluntarily consented to sex
with MacLeod. Appellants’ Br. at 40–42; Appellants’ Supp. Br. at 6. As a
result, any information that Sexton and Burke did not know at the time of
the events relevant here could not have supported their theory that they
honestly believed Nielsen might have consented to voluntary sex with
MacLeod. The evidence from the Illinois State Police investigation
therefore is not relevant to the issues on appeal.
36 Nos. 23-3060 & 24-1696

his alleged belief. Burke did not present a separate offer of
proof.
In Sexton’s offer of proof, he testified that his belief about
Nielsen’s willingness was the reason he decided to interview
other potential witnesses before he spoke with Nielsen.
Sexton also testified that his supposed belief informed his
approach when he eventually did talk to Nielsen. He said he
did not “want to show all my cards because [Nielsen and
MacLeod] could go about ways of hiding it.” Sexton also
testified that his alleged belief informed the level of danger he
thought Nielsen faced, as “if it’s an agreed-upon relationship,
she’s engaging in something [she] wants to do.” He testified
more broadly that his alleged belief informed the way he
conducted his investigation as a whole.
Yet Sexton also acknowledged important facts that
undermined his theory of consent. He conceded that the
Hicks Report gave him enough information to conclude that
“if she’s relying on Mr. MacLeod to call her daughter”—as
she in fact had to, and as the Hicks Report told him—that
power would make her “more vulnerable” to sexual abuse.
Sexton also faced scrutiny on the reasons for and sincerity
of his alleged belief. At trial, he testified at least twice that the
“freshen up” comment was the sole basis on which he
concluded that Nielsen “wanted it.” To impeach Sexton on
this point, Nielsen introduced testimony from his deposition
in which he: (1) gave a different basis for his alleged belief,
namely that Nielsen did not disclose the sexual abuse to him
when he spoke to her in December 2016; (2) admitted he
actually did not know at the time if Nielsen “wanted” sex
with MacLeod or not; and (3) all but conceded that his alleged
Nos. 23-3060 & 24-1696 37

belief was likely a “rationalization” to help himself not “feel
bad”:
Q. Did you feel responsible that you were
unable to protect Ms. Nielsen between
December 2016 and August 2017?
A. Not necessarily because I asked her. I gave
her the opportunity to tell me in December of
’16. And if she didn’t want to tell me, then my
thoughts are, this was something she wanted to
take place. But she can’t give consent; I get that.
But I guess maybe that’s my rationalization
behind that.
Q. Okay. Because Ms. Nielsen didn’t disclose to
you herself affirmatively in December of 2016,
you believed maybe she wanted the sexual
contact from Mr. MacLeod; is that what you’re
saying?
A. I don’t know if she did or not. I was just
telling you I just -- I try not to feel bad about the
continuation of the sexual misconduct.
D. Analysis
The question for qualified immunity is whether it was
reasonable for Sexton and Burke to believe between
December 2016 and February 2017 that their plan was a
reasonable response to what they knew. Gevas v. McLaughlin,
798 F.3d 475, 484 (7th Cir. 2015) (noting defendants’ qualified
immunity argument was “premised on the notion that it was
reasonable for them to believe that Gevas’ ability to refuse
housing was a sufficient response to the danger even if, as we
have concluded, it was not”); see also Anderson v. Creighton,
38 Nos. 23-3060 & 24-1696

483 U.S. 635, 641 (1987) (“The relevant question … is the
objective (albeit fact-specific) question whether a reasonable
officer could have believed [the federal agent’s] warrantless
search to be lawful ….”).
In considering the offer of proof, we are not required to
credit Sexton’s testimony as true. There is no doubt that
Sexton and Burke were aware of ample facts signaling
MacLeod was coercing Nielsen into sex, as we explained
above. Walton requires that we consider the “freshen up”
comment and Sexton’s explanations for his actions. The jury’s
verdict, however, also requires that we view the offer of proof
as a whole—not just the portions favorable to Sexton and
Burke—and in light of the whole record.
The excluded evidence changes nothing with respect to
qualified immunity. Even if we were prepared to accept that
Sexton concluded from the “freshen up” comment that
Nielsen in some relevant way consented to sex with
MacLeod—and we are not—qualified immunity still would
not apply.
To overcome qualified immunity, Nielsen must be able to
“show either a reasonably analogous case that has both
articulated the right at issue and applied it to a factual
circumstance similar to the one at hand”—before December
2016, when Sexton and Burke learned of the Hicks Report—
“or that the violation was so obvious that a reasonable person
necessarily would have recognized it as a violation of the
law.” Leiser v. Kloth, 933 F.3d 696, 701–02 (7th Cir. 2019),
quoting Howell v. Smith, 853 F.3d 892, 897 (7th Cir. 2017). On
the first prong, an analogous case need not be “on all fours”
with our facts, but Nielsen would need to identify “some
settled authority that would have shown a reasonable officer”
Nos. 23-3060 & 24-1696 39

in Sexton and Burke’s position that their actions were
unconstitutional. Id. at 702, quoting Howell, 853 F.3d at 897,
and citing Mullenix v. Luna, 577 U.S. 7, 11–12 (2015). Farmer
and Ortiz may not be enough themselves because “the
dispositive question is whether the violative nature of
particular conduct is clearly established,” not merely the right
“as a broad general proposition.” Mullenix, 577 U.S. at 12
(cleaned up), quoting first Ashcroft v. al-Kidd, 563 U.S. 731, 742
(2011), and then Brosseau v. Haugen, 543 U.S. 194, 198 (2004).
Alternatively, Nielsen could establish that Sexton and
Burke’s conduct was “so outrageous that no reasonable
correctional officer would have believed the conduct was
legal.” Leiser, 933 F.3d at 704. We applied that exception in
Gevas, reasoning that telling an inmate to escape a threatening
cellmate by committing a disciplinary violation (refusing his
cell assignment) “runs counter to the essential nature of
incarceration” and is “at odds with the respective duties that
existing case law imposed on prisoner and prison official.”
798 F.3d at 485. The Supreme Court has applied that approach
to tying a prisoner to a hitching post in the Alabama sun for
hours without water or bathroom breaks, Hope v. Pelzer, 536
U.S. 730 (2002), and to leaving a prisoner for several days in a
“shockingly unsanitary” cell covered “nearly floor to ceiling”
with feces. Taylor v. Riojas, 592 U.S. 7 (2020).
Other circuits have also applied that approach both inside
and outside prison. See Gilmore v. Georgia Dep’t of Corrections,
144 F.4th 1246, 1263–64 (11th Cir. 2025) (en banc) (reversing
qualified immunity; correctional officers subjected regular
prison visitor to surprise mandatory strip search without
offering option to leave premises); Jones v. Hunt, 410 F.3d 1221,
1224–25, 1230–31 (10th Cir. 2005) (reversing qualified
40 Nos. 23-3060 & 24-1696

immunity; social worker threatened teenage girl with arrest
and imprisonment for refusing to live with father in “direct
contravention” of temporary restraining order prohibiting
contact); Tyson v. County of Sabine, 42 F.4th 508, 520 (5th Cir.
2022) (rejecting qualified immunity; sheriff’s deputy used
welfare check as pretense to force woman to “strip [to] her
privates, to manually manipulate her genitals, and to remain
exposed while he masturbated”).
Nielsen relies on this obvious-violation approach. The
Eleventh Circuit’s decision in Hill v. Cundiff, 797 F.3d 948 (11th
Cir. 2015), is helpful here. It was a case with facts disturbingly
similar to those we face here. In Hill, the court rejected a
qualified immunity defense for a public school teacher’s aide
and assistant principal who “contrived” and “ratified,”
respectively, a plan to use a 14-year-old girl as “bait in a sting
operation” to catch a male classmate in the act of sexual
harassment. Id. at 955–56, 961, 979–80. The teacher’s aide had
pressured the girl to participate in the scheme after the boy
kept badgering her for sex but never faced punishment. The
teacher’s aide did so because official school policy—which the
court noted was “glaring[ly] inadequa[te]”—was not to
substantiate allegations without a student being caught in the
act, physical evidence, or a confession. Id. at 957–58, 978. But
the “sting operation” went awry. The boy forcibly raped the
girl while the teacher’s aide waited outside the wrong
bathroom. Id. at 962–63. The Eleventh Circuit wrote, in a terse
understatement, that it was “not surprising the district court
could not find similar case law.” Id. at 979.
We are equally unsurprised here. Using a prison inmate as
unwitting bait to catch a staff member in the act of sexually
abusing her is obviously an outrageous response. No
Nos. 23-3060 & 24-1696 41

reasonable prison official could have considered it acceptable.
It is so outrageous that we would not expect to find much case
law dealing with similar facts. And if that were not bad
enough, Sexton carried out this plan so poorly, and then
abandoned it, that he allowed at least one further sexual
assault by MacLeod. He and Burke also left Nielsen
vulnerable and fearful of further assaults for months.
Compared to advising an inmate to protect himself by
committing a disciplinary violation, as in Gevas, intentionally
using an inmate as unwitting bait for a sexual predator “runs
counter to the essential nature of incarceration” and is “at
odds with” both a prison official’s duty to protect inmates and
an inmate’s own obligations. 798 F.3d at 485.
For starters, willingly engaging in any sexual conduct
exposes an inmate to discipline. We have allowed the Illinois
Department of Corrections to punish an inmate who
embraced and kissed his girlfriend and fondled her buttocks
during a visit with a thirty-day prohibition on receiving
visitors and an eighteen-month prohibition on receiving the
girlfriend in particular, delaying the couple’s plans to marry.
Martin v. Snyder, 329 F.3d 919, 920–22 (7th Cir. 2003) (granting
qualified immunity); see also 20 Ill. Admin. Code § 504 app.
A, para. 107 (2025) (prohibiting “[e]ngaging in sexual
intercourse, sexual conduct or gesturing, fondling or touching
done to sexually arouse, intimidate or harass either or both
persons”); id. tbl. A (punishable by six months’ segregation, C
grade, loss of privileges and/or sentence credit revocation). So
Sexton and Burke’s plan relied on Nielsen committing, or at
least attempting to commit, acts for which she could have
faced punishment similar to that which MacLeod threatened
her with if she reported him.
42 Nos. 23-3060 & 24-1696

Second, under this court’s precedent, an inmate lacks a
constitutional right to use force in self-defense, even to defend
herself against a violent rape. Rowe v. DeBruyn, 17 F.3d 1047,
1052–53 (7th Cir. 1994); see also Scruggs v. Jordan, 485 F.3d 934,
937, 939 (7th Cir. 2017) (re-affirming and extending Rowe to
defense of others). So an inmate could be subject to
administrative discipline if at any point, including when she
is alone with the perpetrator, she tries to fight off the attack.
See 20 Ill. Admin. Code § 504 app. A, para. 102b (2025)
(prohibiting “[c]ausing a person, substance, or object to come
into contact with a staff member … in an offensive or
provocative manner; or fighting with a weapon”). MacLeod
knew the power this rule gave him. In fact, he threatened to
concoct a story about Jane Doe No. 1 attacking him if she ever
told anyone about the sexual abuse.
Third, we have repeatedly held that an inmate must follow
oral and written orders from staff. See Gevas, 798 F.3d at 485,
citing first Forbes v. Trigg, 976 F.2d 308, 313–14 (7th Cir. 1992)
(to submit to urine tests), then Redding v. Fairman, 717 F.2d
1105, 1115–16 (7th Cir. 1983) (to accept housing assignments),
and then Smith v. Roal, 494 F. App’x 663, 664–65 (7th Cir. 2012)
(non-precedential decision) (to submit to handcuffing). At
Logan, that means inmates are subject to discipline if they
refuse to go wherever a staff member summons them,
whether or not staff uses the official call-pass system. See 20
Ill. Admin. Code § 504 app. A, para. 307 (2025) (prohibiting
“[b]eing anywhere without authorization or being absent
from where required to be”).
To put it all together, circuit and state law allows inmates
to be disciplined for refusing to go where a staff member tells
them, to be disciplined for physically resisting a staff
Nos. 23-3060 & 24-1696 43

member’s attempt to rape them, and to be disciplined for
willingly engaging in any sexual activity with a staff member.
The Constitution, under our decisions, thus left Nielsen
subject to prison discipline, including further loss of her
liberty, if she had tried to defend herself against MacLeod’s
sexual assaults. Rowe, 17 F.3d at 1052–53. 8
Under Rowe, Nielsen had no lawful recourse because she
was held in a state prison. No lawful recourse, that is, except
protection by prison officials like Sexton and Burke charged
by the State of Illinois (through its laws) and by Congress
(through the Prison Rape Elimination Act) with preventing
such crimes. The Constitution does not—and we have no
difficulty characterizing our conclusion as obvious—allow
those officials instead to choose deliberately to leave
vulnerable prisoners at the mercy of abusive prison staff.
Sexton and Burke did just that. They are not entitled to
qualified immunity.
IV. New Trial Based on Excluded Evidence
Sexton and Burke next contend that they are entitled to a
new trial because the district court erred by excluding
Sexton’s offer of proof as irrelevant to liability and
compensatory and punitive damages.

8 We have since recognized a statutory right to self-defense for federal

inmates against unconstitutional uses of force by prison staff in part
because a contrary holding “would prevent inmates from protecting
themselves from sadistic and malicious acts,” including “cases of sexual
abuse,” a result that “harmonize[s]” the federal criminal prohibition on
assaulting prison guards with Eighth Amendment protections. United
States v. Waldman, 835 F.3d 751, 755–56 (7th Cir. 2016); see 18 U.S.C. § 111.
44 Nos. 23-3060 & 24-1696

“We review a district court’s evidentiary ruling for abuse
of discretion,” Maurer v. Speedway, LLC, 774 F.3d 1132, 1135
(7th Cir. 2014), but an “evidentiary ruling that rests on a legal
error is, by definition, an abuse of discretion.” Burton v. E.I. du
Pont de Nemours & Co., 994 F.3d 791, 812 (7th Cir. 2021). “And,
even in the face of error, we will not reverse a judgment
entered on a jury verdict unless the erroneous ruling violated
the objecting party’s substantial rights,” meaning “a
significant chance must exist that the ruling affected the
outcome of trial.” Maurer, 774 F.3d at 1135, quoting Smith v.
Hunt, 707 F.3d 803, 808 (7th Cir. 2013).
We consider separately the relevance and then the effects
of the excluded evidence, first as to liability and then to
compensatory damages and punitive damages. We conclude
that the excluded evidence was relevant only as to liability
and punitive damages and that the erroneous exclusion was
prejudicial only as to punitive damages.
A. The District Court’s Rulings
The district court made two key evidentiary rulings.
Before trial, Nielsen moved in limine to exclude as irrelevant
and unfairly prejudicial “any evidence or argument
suggesting Plaintiff consented to the custodial rape and
assaults she suffered.” The district court granted the motion
without explanation. 9

9 Nielsen also objected to admitting the “freshen up” comment on

hearsay grounds, and she repeats that objection in her brief on appeal. The
district court did not address the hearsay objection; we reject it. The
“freshen up” comment as reported by Hicks to Sexton was not admissible
to prove Nielsen consented or even that she ever said the words to Hicks.
But it was admissible for a purpose other than its truth, that is, to show
the information available to Sexton when he acted or failed to act. See, e.g.,
Nos. 23-3060 & 24-1696 45

The district court explained its reasons when it denied
Sexton and Burke’s Rule 59 motion, which sought a new trial
on the ground that the excluded evidence was relevant to both
the objective and subjective elements of the Eighth
Amendment standard, causation, and damages. 10

Carter v. Douma, 796 F.3d 726, 736 (7th Cir. 2015) (“When the reasons for
the police’s actions are relevant, a witness can testify about what
information prompted those actions.”). Like many failure-to-protect cases,
this case hinges on what Sexton and Burke knew and when they knew it.
The relevance of their states of mind makes this unlike the ordinary
criminal case, where out-of-court statements offered to explain the “course
of investigation” “can easily violate [the Confrontation Clause], are easily
misused, and are usually no more than minimally relevant.” Jones v.
Basinger, 635 F.3d 1030, 1046 (7th Cir. 2011) (granting habeas relief); see
also United States v. Silva, 380 F.3d 1018, 1020 (7th Cir. 2004) (vacating
conviction on this basis).
10 We do not address the objective element of Nielsen’s Eighth
Amendment claim or causation here. As previously noted, on appeal,
Sexton and Burke rely on the excluded evidence only to show their
subjective understanding of the situation at the time, not to show that
Nielsen consented to sex with MacLeod.
Nielsen also argues on appeal, as she did in the district court, that the
excluded evidence was also inadmissible under Rule 403. The district
court, after concluding that the evidence was not relevant in any respect,
also said it was unfairly prejudicial. Given the relevance of Sexton and
Burke’s state of mind at least as to punitive damages, we reject that basis
for exclusion. A properly instructed jury would, we presume, understand
the difference between what Sexton and Burke thought was happening
and what was actually happening. See Doe ex rel. G.S. v. Johnson, 52 F.3d
1448, 1458 (7th Cir. 1995). Moreover, Nielsen was able to cross-examine
Sexton on the matter and to testify herself.
46 Nos. 23-3060 & 24-1696

B. Relevance Under Rule 401
“Evidence is relevant if: (a) it has any tendency to make a
fact more or less probable than it would be without the
evidence; and (b) the fact is of consequence in determining the
action.” Fed. R. Evid. 401. Relevant evidence is admissible at
trial unless otherwise provided in the Federal Rules of
Evidence or some other source of law. Fed. R. Evid. 402.
Relevance is a “low threshold,” and “even testimony that has
‘only minimal relevance’ satisfies Rule 401.” United States v.
Harden, 893 F.3d 434, 451 (7th Cir. 2018), quoting first Tennard
v. Dretke, 542 U.S. 274, 285 (2004), and then United States v.
Boros, 668 F.3d 901, 907 (7th Cir. 2012).
C. Liability
As we explained above, Walton teaches that if Sexton and
Burke thought Nielsen was in a wholly voluntary sexual
relationship, and if they did not draw the inference of a
substantial risk that she was being coerced into sex, they
could not be held liable. The district court explained the
exclusion in its order denying their Rule 59 motion. That
explanation was well-reasoned given the state of circuit law
before Walton. In light of Walton, however, the district court’s
reasoning was legally erroneous and thus must be deemed an
abuse of discretion, as Walton forecloses the district court’s
analysis that “[a]ny belief that Defendant Sexton held that
[Nielsen] was consenting to the sexual encounters with
MacLeod is negated by his understanding that [Nielsen] could
not consent to Macleod.”
If the jury had heard Sexton’s testimony that he thought
Nielsen was a “willing” participant in an “agreed-upon
relationship” with MacLeod, and if it interpreted this
Nos. 23-3060 & 24-1696 47

testimony as him saying that he believed Nielsen was in a
wholly voluntary sexual relationship, and if the jury believed
that claim, Walton means that Sexton could not be held liable.
Nielsen correctly points out that Sexton’s offer of proof
addresses only his state of mind, not Burke’s. Still, a jury
could reasonably infer from her approving Sexton’s plan that
she concurred in his supposed belief, and Nielsen’s case
against Burke is based on her approval of Sexton’s plan. The
offer of proof was relevant to both Sexton’s and Burke’s
liability, so that evidence should not have been excluded.
Before granting a new trial on liability, however, we must
also consider whether the error was likely prejudicial or
harmless. Maurer, 774 F.3d at 1135. Once again, the procedural
posture of this case is critical here. Because we must predict
how the jury would have ruled if the district court had
allowed the excluded evidence, we must consider Sexton’s
offer of proof in its entirety, not just the portions Sexton and
Burke prefer.
Our review leaves us satisfied that it is “unlikely that a
juror would have been persuaded to change his vote on the
basis of the excluded testimony.” Henry v. Wyeth
Pharmaceuticals, Inc., 616 F.3d 134, 151 (2d Cir. 2010). First,
Sexton testified in the offer of proof that he knew Nielsen was
a particularly “vulnerable” inmate because she relied on
MacLeod for access to her daughter. He also testified outside
the offer of proof that he knew that MacLeod had “refused”
when Nielsen “begged” him to use a condom. Those
concessions undermine any theory that Sexton thought
Nielsen was in a voluntary sexual relationship with MacLeod.
That alone is enough to distinguish Walton, where the
relationship indisputably—based on that plaintiff’s own
48 Nos. 23-3060 & 24-1696

testimony—lacked “any coercive factors” aside from the fact
that the plaintiff was in prison. Walton, 135 F.4th at 1072.
More important, Sexton’s offer-of-proof testimony as to
his alleged belief was impeached by his prior inconsistent
testimony. As noted, Sexton at his deposition: (1) gave a
different basis for his alleged belief, namely that Nielsen did
not disclose the sexual abuse to him when he spoke to her in
December 2016; (2) admitted he actually did not know at the
time if Nielsen “wanted” the sexual abuse or not; and (3) all
but conceded that his alleged belief was likely a
“rationalization” to help himself not “feel bad.” 11

11 Sexton and Burke tried to rebut this impeachment with an excerpt

from the same deposition where Sexton, after reviewing the Hicks Report,
testified as follows:
Q. All right. And what about that document refreshed
your recollection?
A. I didn’t realize that she had given such detailed
things in that [document] when I first took that statement.
What I remembered was that I thought she had said she
was going to go see her boyfriend, but apparently, she
gave me more information than that initial statement.
We see nothing in this statement or any other portion of Sexton’s
deposition available in the trial transcript to establish that Sexton testified
at his deposition that Nielsen allegedly calling MacLeod her “man” (or
“boyfriend” as Sexton recalled it) was the reason he thought Nielsen
“wanted it.” Defense counsel made that leap when asking the district
court to let them cross-examine Dr. Smith on this point, but they cited no
additional lines to support the inference. We are skeptical of this post-hoc
characterization. Dr. Smith testified that inmates at Logan often used the
term “boyfriend” to refer to male staff members without meaning to
suggest a romantic relationship, and the district court thought it was
Nos. 23-3060 & 24-1696 49

What’s more, the jury would have been able to consider
Sexton’s prior inconsistent statement not only as
impeachment but also for the truth of the matter asserted and
could have done so against both Sexton and Burke. See Fed.
R. Evid. 801(d)(1)(A) (declarant-witness); United States v.
Cooper, 767 F.3d 721, 728 (7th Cir. 2014). So the jury would
have weighed Sexton’s testimony in the offer of proof with his
prior inconsistent statement made three years closer to the
events in question, and his admissions at trial about the
coercive factors he knew were present, not to mention his
flippant comment to a former coworker about Nielsen’s
situation once she told him about the abuse (“haha it’s a good
one”). Under these circumstances, Sexton’s self-serving
testimony that he believed Nielsen was in a “wanted
relationship” would not have had a “significant chance” of
convincing the jury that he was not actually aware of at least
a significant risk that MacLeod was coercing Nielsen into sex.
See Maurer, 774 F.3d at 1135, quoting Smith, 707 F.3d at 808.
The district court’s error in excluding this evidence was
harmless as to liability.
D. Compensatory Damages
Sexton and Burke do not adequately explain why their
alleged beliefs were relevant to the amount of compensatory
damages. The excluded testimony in fact was not relevant to
compensatory damages because Sexton’s beliefs have no
bearing on the harm Nielsen suffered.

“certainly ambiguous” whether the “she” referred to Nielsen or Hicks in
the first place, given the surrounding testimony.
50 Nos. 23-3060 & 24-1696

E. Punitive Damages
We come to a different answer, however, as to punitive
damages. The offer of proof was relevant to punitive damages
against both Sexton and Burke. Rule 401 applies to evidence
relevant to punitive damages in the same manner as evidence
relevant to liability. See E.E.O.C. v. Indiana Bell Telephone Co.,
256 F.3d 516, 519 (7th Cir. 2001) (en banc).
The district court instructed the jury that it could award
punitive damages against Sexton and Burke (and MacLeod)
only if it found that “their conduct was malicious or in
reckless disregard of Plaintiff’s rights” and, if it so found, to
consider the following factors in deciding how much to
award:
— the reprehensibility of Defendant’s conduct;
— the impact of Defendant’s conduct on
Plaintiff;
— the relationship between Plaintiff and
Defendants;
— the likelihood that Defendant would repeat
the conduct if an award of punitive damages
is not made; and
— the relationship of any award of punitive
damages to the amount of actual harm the
Plaintiff suffered.
The instruction was consistent with Seventh Circuit Pattern
Civil Jury Instructions § 7.28 (2025).
The offer of proof was relevant in three ways. First, it was
relevant to the threshold question of whether both Sexton’s
Nos. 23-3060 & 24-1696 51

and Burke’s conduct was “malicious or in reckless disregard”
of Nielsen’s rights. As the district court instructed the jury:
Conduct is malicious if it is accompanied by ill
will or spite and was done for purpose of
injuring Plaintiff. Conduct is in reckless
disregard of Plaintiff’s rights if, under the
circumstances, the defendant simply did not
care about Plaintiff’s safety or rights.
See Seventh Circuit Pattern Civil Jury Instructions § 7.28
(2025). A reasonable jury might have credited Sexton’s
statement that he thought Nielsen was a “willing” participant
in an “agreed-upon” relationship, even if we doubt it would
have believed he thought there was no significant risk that
Nielsen was being coerced. If so, the jury may have been less
likely to infer that Sexton or Burke acted with “ill will or spite”
or “did not care about [Nielsen’s] safety.”
Second, the offer of proof was also relevant to the amounts
of punitive damages the jury awarded, most directly to the
reprehensibility of both Sexton’s and Burke’s actions. A
reasonable jury could conclude that while using as bait an
inmate who the prison official thinks is a willing participant
might be reprehensible enough, using an unwilling inmate
was even more so. Reprehensibility was likely a major factor
in the jury’s punitive damages awards. After all,
reprehensibility is “[p]erhaps the most important indicium of
the reasonableness of a punitive damages award” for Due
Process Clause purposes. BMW of North America, Inc. v. Gore,
517 U.S. 559, 575 (1996).
The offer of proof was also relevant to the likelihood of
repetition of Sexton’s conduct. (By the time of trial, Sexton
52 Nos. 23-3060 & 24-1696

had been promoted to shift supervisor at another prison.
Burke had retired.) In his testimony, Sexton referred on
several occasions to unstated “reasons” for the steps he took,
but the district court barred him from explaining his reasons
to the jury. Left to speculate on what these reasons might have
been, the jury might have drawn any number of unsupported
inferences that could have affected the amounts it awarded.
Given the discretionary nature of punitive damages,
errors in admitting and excluding evidence bearing directly
on a defendant’s moral culpability cannot be treated too easily
as harmless. The error here was not harmless. By way of
comparison, the standard for relevant mitigating information
in capital sentencing is similarly far broader than for evidence
relevant to guilt or innocence. See generally United States v.
Tsarnaev, 595 U.S. 302, 317–20 (2022); Eddings v. Oklahoma, 455
U.S. 104, 110 (1982). We vacate the jury’s awards of punitive
damages against Sexton and Burke. Given our holding in
Section V, at the new trial on damages both sides should be
able to present evidence and argument relevant to whether
punitive damages should be awarded and, if so, in what
amounts.
V. Compensatory Damages Under Nielsen’s Two Theories of
Liability
Finally, Sexton and Burke contend that the district court
erred by refusing to instruct the jury, if it found liability, to
determine in a special verdict the theory or theories of liability
it accepted. As discussed above, Nielsen advanced a “general
conditions” theory of liability—essentially, that Sexton and
Burke contributed to creating a toxic culture of sexual abuse
at Logan—as well as a more specific theory of liability based
on what they did after receiving the Hicks Report. The
Nos. 23-3060 & 24-1696 53

difference matters, Sexton and Burke argue, because the
theory of liability affects the scope of damages for which they
are liable: for harms they caused from August 2016 onward
for the general conditions theory, and from the Hicks Report
in December 2016 onward for the specific theory.
A district court may require a civil jury to answer
interrogatories making “a special written finding on each
issue of fact” or to answer a general verdict “together with
written questions on one or more issues of fact that the jury
must decide.” Fed. R. Civ. P. 49(a)(1) & (b)(1). “[W]e review a
district court’s refusal to submit a proposed special verdict
question … only for an abuse of discretion.” Bularz v.
Prudential Insurance Co., 93 F.3d 372, 377 (7th Cir. 1996).
We conclude that this is a rare case where a special verdict
was not just helpful but necessary. As Sexton and Burke
explain, only if the jury accepted both theories of liability
could these defendants be found deliberately indifferent for
the entire period. The fundamental problem stems from the
role of MacLeod at trial, even as a defaulted party, and in the
jury’s tasks. MacLeod was indisputably liable to Nielsen for
all her injuries. Though far from the only aspect of
compensatory damages she sought, Nielsen testified at length
to the emotional harms she suffered as an inmate while
MacLeod was sexually abusing her—i.e., from August 2016 to
February 2017. We expect that the length of time or number
of times a plaintiff experiences such abuse would likely affect
a jury’s damages award. Indeed, Nielsen’s counsel referred
aptly in closing argument to the “months and months and
months” of abuse Nielsen suffered. We must assume the jury
included in its $8 million compensatory damages award all of
Nielsen’s injuries from August 2016 onward, even though it
54 Nos. 23-3060 & 24-1696

lacked sufficient evidence to conclude that Sexton and Burke
were deliberately indifferent before December 2016.
Joint and several liability does not offer a path to affirm
here. Sexton and Burke are jointly and severally liable for
injuries they each personally contributed to causing through
their joint unconstitutional conduct, but not otherwise. See
Harper v. Albert, 400 F.3d 1052, 1061–62 (7th Cir. 2005). Sexton
and Burke acted in concert, so it would not be necessary to
apportion compensatory damages between the two of them.
But unless the jury accepted Nielsen’s general conditions
theory of liability—and we have concluded that no reasonable
jury could have done so—it should have been required to
apportion damages between injuries caused by sexual abuse
before and after the Hicks Report.
Nielsen defends the general verdict by citing Section 1983
cases in which we have said that damages should not be
apportioned where several state actors contribute by their
unconstitutional conduct to an “indivisible injury.” These
cases are readily distinguishable because each involved
essentially one discrete event. None were fairly comparable to
“months and months and months” of emotional distress
inflicted by multiple distinct sexual assaults. See Thomas v.
Cook County Sheriff’s Dep’t, 604 F.3d 293, 297–98 (7th Cir. 2010)
(death from illness after less than one week in custody);
Harper, 400 F.3d at 1054 (abuse by several guards “during a
cell-transfer procedure”); Cooper v. Casey, 97 F.3d 914, 916, 919
(7th Cir. 1996) (one episode of “kicking and punching and
macing” by several guards followed by “refusal to provide
prompt medical assistance” for two days); Watts v. Laurent,
774 F.2d 168, 171 (7th Cir. 1985) (single violent attack by fellow
juvenile detainee). While the follow-on effects of MacLeod’s
Nos. 23-3060 & 24-1696 55

abuse of Nielsen are perhaps “indivisible,” the length of time
she spent in custody subject to MacLeod’s abuse is not. The
Hicks Report is, for damages against Sexton and Burke, the
clear demarcation. 12
Certainly, Nielsen suffered “neither purely physical nor
temporary” harms. But her damages expert, Dr. Burgess,
testified to six “buckets” of harm Nielsen suffered, the first
being “physical assault,” and Nielsen’s counsel referred to
that testimony again in closing argument when asking the
jury to award damages of at least $2 million for that (and
every other) category. Thus, Nielsen’s close reading of Dr.
Burgess’s testimony that she suffered a “‘significant and
serious injury’ (singular) in the form of a ‘serious trauma’
(singular),” as well as her parsing of similar language in J.K.J
v. Polk County, 960 F.3d at 376, do not convince us that Sexton
and Burke can be held liable for all harm Nielsen suffered. We
therefore remand for a new trial on both compensatory and
punitive damages, but not liability, against Sexton and
Burke. 13
To sum up: MacLeod did not appeal, so the portion of the
judgment against him is not affected by this decision. We

12 Moreover, given the district court’s denial of Sexton and Burke’s

requested verdict form, we cannot fault them, as Nielsen invites us, for
failing to “establish [at trial] any manner to assess that ‘one trauma’ on an
assault-by-assault basis.” See Appellee’s Br. at 48.
13 Finally, Sexton and Burke argue that the district court’s multiple

errors, including three supposed errors not addressed in this opinion, had
the cumulative effect of depriving them of a fair trial. See Jordan v. Binns,
712 F.3d 1123, 1137 (7th Cir. 2013). We have granted a new trial on
compensatory and punitive damages based on the excluded evidence and
the verdict form, but we find no merit in appellants’ other contentions.
56 Nos. 23-3060 & 24-1696

affirm the jury’s finding of liability against Sexton and Burke
based on Nielsen’s specific theory of liability and the denial
of qualified immunity. We vacate the compensatory and
punitive damage awards against Sexton and Burke and
remand for a new trial on compensatory and punitive
damages for their outrageous response to the Hicks Report.
We also vacate and remand the attorney fee award for the
district court’s reconsideration in light of the result of the new
damages trial and in accord with Hensley v. Eckerhart, 461 U.S.
424 (1983). See also Blum v. Stenson, 465 U.S. 886, 895 (1984);
Uphoff v. Elegant Bath, Ltd., 176 F.3d 399, 407–08 (7th Cir. 1999).
Finally, Circuit Rule 36 shall not apply on remand if Judge
Myerscough is willing to preside over the new trial on
damages.