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J.K.J. v. Polk County

United States Court of Appeals, Seventh Circuit

June 26, 2019

J.K.J. and M.J.J., Plaintiffs-Appellees,
Polk County and Darryl L. Christensen, Defendants-Appellants.

          Argued November 9, 2018

          Appeals from the United States District Court for the Western District of Wisconsin. Nos. 15-cv-428-wmc and 15-cv-433-wmc - William M. Conley, Judge.

          Before Bauer, Brennan, and Scudder, Circuit Judges.

          Brennan, Circuit Judge.

         Darryl Christensen, a Polk County, Wisconsin Jail corrections officer, sexually assaulted plaintiffs J.K.J, and M.J.J, over three years during their incarcerations. Plaintiffs sued Christensen and the county under 42 U.S.C. § 1983, alleging Eighth and Fourteenth Amendment claims, in addition to a state law negligence claim against the county. After trial, the jury found Christensen and the county liable for J.K.J, and M.J.J.'s injuries and awarded each $2 million in compensatory damages. The jury also levied punitive damages against Christensen, awarding $3, 750, 000 to each plaintiff. Both defendants moved for new trials, and the county also moved for judgment as a matter of law. The district court denied those requests and defendants now appeal the judgments entered against them.

         We see no reason to disturb the jury's verdict against Christensen and so affirm the denial of his request for a new trial. His assaults were predatory and knowingly criminal. But to impose liability against the county for Christensen's crimes, there must be evidence of an offending county policy, culpability, and causation. These are demanding standards. Christensen's acts were reprehensible, but the evidence shows no connection between the assaults and any county policy. We therefore reverse and remand for entry of judgment in favor of the county.

         I. Background

         A. Christensen's Sexual Assaults

         M.J.J, and J.K.J, were inmates at Polk County Jail at various times between 2011 and 2014. Christensen admits he engaged in sexual acts with the women individually. To hide his offenses, Christensen planned his encounters to occur when no one was present and in locations where he controlled access. He also urged plaintiffs not to discuss or report his sexual advances because he would lose his job and family if caught. Plaintiffs complied with Christensen's secrecy directive and his assaults were kept hidden from jail officials.

         Polk County authorities discovered Christensen's assaults against M.J.J, and J.K.J, after a former inmate reported her own sexual encounters with Christensen to an investigator in a neighboring county. When notified of the former inmate's allegations, county authorities initiated an internal investigation and confronted Christensen, who immediately resigned. The investigation continued, which led to the discovery of Christensen's abuse of plaintiffs, and ultimately to his prosecution. He eventually pleaded guilty to several counts of sexual assault and is serving a 30-year prison sentence.

         B. Trial Evidence

         Plaintiffs sued the county and Christensen in separate actions and the cases were consolidated for jury trial. Plaintiffs alleged that defendants were deliberately indifferent to a serious risk of sexual assault in violation of their Eighth and Fourteenth Amendment rights, and that the county violated state law by negligently supervising Christensen.

         At trial, Christensen admitted his offenses but challenged the harms plaintiffs suffered. He argued plaintiffs consented to his overtures and that their encounters were the product of "voluntary attraction." Although not stated directly, his position implied that any award of damages should correspond to plaintiffs' level of consent. Plaintiffs denied consenting to Christensen's advances and offered expert testimony showing their mental trauma from his assaults.

         Against the county, plaintiffs made four principal allegations: (1) the jail's sexual assault policies and training were inadequate; (2) the jail customarily tolerated sexually offensive comments by guards; (3) the investigation of a former guard revealed the jail's sexual assault policy was inadequate and that the jail minimized sexual abuse; and (4) the jail failed to widely implement recommendations under the Prison Rape Elimination Act (PREA), 34 U.S.C. §§ 30301-09. The sum of these allegations, plaintiffs argued, prove the county was deliberately indifferent to a known risk of sexual assault by jail staff. The county disagreed, arguing that the trial evidence did not support the jury's liability finding and damages awards. These claims were heavily contested, and we recount the evidence noting those facts the county disputed. Although we summarize the trial evidence, on appeal we view the facts in the light most favorable to the jury's verdict. See Lindsey v. Macias, 907 F.3d 517, 518 n.1 (7th Cir. 2018).

         1. Policies and training

         Plaintiffs alleged the jail had no policy either to prevent or detect sexual assaults, and that its policies on sexual misconduct were "practically nonexistent." At trial, the county produced several policies prohibiting sexual contact between guards and inmates, and two stand out.

         Policy 1-100 forbids any mistreatment or harassment of inmates, explaining inmates' rights and informing them that it is never acceptable for "any inmate [to] be the object of verbal, physical, emotional, psychological, or sexual harassment by facility staff." The policy continues, "[a]ny officer engaged in such actions is subject to disciplinary charges and/or termination." Inmates are also provided a handbook when booked into the jail that says:

Every inmate has the right to be safe from sexual abuse and harassment. No one has the right to pressure you to engage in sexual acts. If you are being pressured threatened, or extorted for sex, you should report this to staff immediately.
Likewise, Policy C-202 prohibits any "intimate social or physical relationship with a prisoner." It also informs jail staff that sexual contact with any inmate is a criminal offense under Wisconsin law, and any officer that suspects such conduct has a duty to report it. See Wis. Stat. § 94O.225(2)(h) (categorizing sexual contact and sexual intercourse by a correctional staff member with an inmate as a Class C felony).
Plaintiffs also claimed the county never trained officers to avoid sexual assaults. But the jail's onboarding and continuing education programs instruct employees that sexual contact with prisoners is a crime and never permitted. The Wisconsin Department of Corrections (DOC) approved these programs annually, requiring: (1) eight to ten weeks of "field training," during which a new corrections officer shadows an experienced officer to learn jail policies and procedures; (2) completion of a 160-hour jail training program to become a certified corrections officer; (3) 24 hours of continuing education each year to be recertified; and (4) daily training, which includes specific training on the jail's prohibition against fraternizing with inmates.
At trial, Christensen acknowledged the jail trained him that sexual contact with inmates is a felony and against jail policies. Specifically, Christensen testified:
• He knew his conduct violated jail policy;
• He was trained his conduct was a crime;
• He knew he was putting plaintiffs at risk;
• He never forgot that sex with inmates was a crime; and
• He agreed he did not require more training to know his conduct was a crime.

         Plaintiffs' expert witness on prison training standards, Jeffrey Eiser, testified that the jail's policies prohibited sexual contact between inmates and guards. Eiser also corroborated that the county trained Christensen that sexual contact with inmates was a felony and against jail policy.

         To support their contention that the jail never trained its staff, plaintiffs relied on two witnesses. The first, Lynelle Manning, was a jailer with the county for about 20 months. Manning testified that although she was never officially certified as a correctional officer, she received "formal training" by the jail and shadowed a senior officer for weeks. She also received and read the jail's policy and inmate booking manuals, which contain the jail's prohibition of sexual contact between guards and inmates. Manning also testified that during her employment she never heard sexually charged conversations between jail staff and inmates.

         Plaintiffs' second witness, Sergeant Steven Schaefer of the county's sheriff's department, worked at the jail from 2002 until 2015. Schaefer testified "we were all required to attend" countywide training on sexual harassment. He provided the training to new employees from time to time. According to Schaefer, that training instructed on the jail's numerous prohibitions between staff and inmates, including improper comments, becoming too close or too familiar, sharing personal information, and sexual relationships. He also agreed that improper relationships between inmates and guards were "something that the jail as a whole took very seriously." Notwithstanding Schaefer's testimony, plaintiffs' counsel told the jury during closing argument: "You heard Sergeant Schaefer say, 'We never trained on it. We never trained on it. We never trained on it.'"

         2. Inappropriate speech

         Next, plaintiffs alleged that jail staff routinely made sexually inappropriate comments about female inmates without repercussions.

         According to plaintiffs, Captain Scott Nargis, who oversaw daily operations of the jail, was the reason that sexually offensive speech was accepted at the jail. During adverse examination, plaintiffs' counsel asked Nargis if he ever "engaged in tier talk which is not necessarily flattering talk amongst co-workers"; Nargis answered "yes." Nargis also agreed that he participated in tier talk "on occasion" to establish trust among subordinate officers. Plaintiffs never asked Nargis on the witness stand if he himself made sexual comments. Nor did plaintiffs present evidence that tier talk connoted "sexual talk," that Nargis's "tier talk" was sexually explicit, or that Nargis made comments sexual in nature with, about, or around inmates or guards.

         Evidence to suggest Nargis knew about offensive comments by jail staff was scarce and unclear as to timing. Nargis testified that during Christensen's twelve-year employment, he once heard Christensen comment on a female's "rear end." He did not recall whether that comment was made about an inmate. Nargis also recalled being told that Christensen once remarked about an inmate's breasts.

         Evidence of inappropriate sexual comments by other jail staff was also sparse and unspecific. J.K.J, testified she believed two other corrections officers once overheard Christensen making flirtatious comments to inmates. Christensen also testified to overhearing a jail guard, Allen Jorgenson, and two other guards make suggestive comments to inmates. But J.K.J, and Christensen offered no specifics on the alleged comments, and there was no evidence these incidents were reported to the county or any jail supervisor.

         3. Investigation of former guard

         At trial, plaintiffs introduced one other allegation of sexual contact between a jail guard, Jorgenson, and an inmate, N.S.: another inmate saw Jorgeson put his arm around N.S.'s waist and "pat her on the butt." This occurred in 2012, two years before the discovery of Christensen's violations.[1] Sergeant Steven Schaefer reported these allegations to Nargis, who in turn questioned Jorgenson and N.S. individually. Each denied any improper relationship or contact. Despite these denials, Nargis requested the assistance of chief deputy sheriff Steven Moe to further investigate Jorgenson.

         To plaintiffs, the Jorgenson investigation proves the county "minimized" and ignored allegations of a guard assaulting an inmate. At trial, the jury considered the findings of the Jorgenson investigation, including Jorgenson's interactions with N.S. Another inmate believed Jorgenson and N.S. had an "inappropriate relationship" but "no physical relationship." It was also reported that Jorgenson misused a jail camera to focus on inmates longer than necessary. In addition to an internal investigation, Nargis and Moe reached out to former inmates as part of their review. Because of inconsistent witness accounts, Nargis and Moe could not confirm that Jorgenson engaged in any sexual contact with N.S. Still, Nargis and Moe concluded that Jorgenson's affiliation with N.S. violated jail policy. As a result, Jorgenson was issued a written reprimand for "foster[ing] a friendship relationship" by giving "undue, unfair, or simply too much attention" to N.S., who continued to deny any improper actions or relationship up to the point of Jorgenson's reprimand.

         After Jorgenson was written up, N.S. recanted her denials in a letter to Nargis. In response, Nargis and Moe reopened the investigation "to take a whole fresh look at the situation." N.S.'s letter detailed that Jorgensen made sexually harassing gestures and crude and indecent remarks, and asserted allegations of Jorgeson putting his arm around N.S.'s waist and touching her "back and butt." After this second review, Nargis and Moe could not confirm these allegations and decided the reprimand remained the appropriate level of discipline. At trial, no evidence was submitted that Nargis or Moe erred in the Jorgenson investigation or performed their inquiries in bad faith. In closing, plaintiffs' counsel argued to the jury that the "jail knew that one of their trusted friends was committing sexual assault against at least one inmate, N.S." but considered it "no big deal."

         Jorgenson also made inappropriate remarks, of which inmates and staff were aware. But there was no evidence Jorgenson's improper comments were reported to Nargis, Moe, or any county policymaker before the N.S. investigations. On that point, the county argued the N.S. allegations prompted complaints by various female coworkers, who claimed Jorgenson made inappropriate comments to them as well. Those coworker complaints led to a human resources investigation that resulted in Jorgenson resigning.

         4. Prison Rape Elimination Act (PREA)

         The county's sexual assault policies were inadequate to prevent and detect assaults, and the county deliberately avoided opportunities to reduce sexual assault risks, according to plaintiffs. Both arguments were based on the county's purported underutilization of policy recommendations from PREA.

         Again, plaintiffs zeroed in on Nargis. They claimed the jail intentionally shunned PREA because Nargis openly "denigrated ... PREA standards," citing a 2014 email from Nargis to jail staff about PREA training:

Seems to be that everyone is in a tizzy to train their staff on PREA. There is no requirement for use [sic] to be compliant with everything that the law calls for, but nevertheless it is federal law. So we'll hit the basics of PREA training.

         At trial, plaintiffs termed this "the tizzy email." To plaintiffs, Nargis's choice of the word "tizzy" was "mocking" PREA and "indicated] that he disliked PREA." They also claimed the email never discussed any specific PREA measures. Rather, it merely restated the jail's current anti-sexual assault policies. Plaintiffs argued "the tizzy email" proves that Nargis and the jail "consciously disregarded" PREA standards, and by extension, disregarded the risk of sexual assaults at the jail.

         Plaintiffs' expert Eiser opined that the jail's sexual assault policies and training were inadequate because they did not fully adopt certain components of PREA. Eiser conceded compliance with PREA is not mandatory for county jails in Wisconsin, and that PREA standards are better viewed as optional "best practices." Eiser also testified there is no empirical data that compliance with the proposed best practices would yield a better result. Plaintiffs agree that state law, not PREA, governs county jails in Wisconsin, but did not offer evidence that the jail's sexual assault policies or training fell below state legal or administrative standards.

         As for compliance with state law, the county argued the DOC annually reviews the jail's policies, including its policy prohibiting fraternization with inmates. In each year of plaintiffs' incarcerations, the DOC found the jail to be in full compliance with all applicable Wisconsin statutes and regulations. Language addressing PREA was added to the jail's anti-fraternization policy in 2012, with an accompanying PREA training in 2014. The county also noted that in the past nine years, during which the jail housed 14, 100 inmates, Jorgenson's circumstance was the only known improper relationship between a guard and an inmate.

         C. Verdict and Post-Verdict Motions

         The district court bifurcated the trial into liability and damages phases. At the close of the liability phase, during the jury instruction conference, the court found the evidence failed to show a pattern of constitutional violations known to county policymakers. As a result, the court excluded this basis of liability from the jury instructions, leaving plaintiffs to argue that the "risk of the inadequacy of the training, supervision, and/or adoption of policies [was] plainly obvious." The court also rejected a jury instruction as to whether plaintiffs consented to Christensen's sexual contact and thus reduced plaintiffs' harm.

         After a five-day trial, the jury found for plaintiffs on all claims and awarded each plaintiff $2 million in compensatory damages against the county and Christensen. The jury also awarded $3, 750, 000 to each plaintiff in punitive damages against Christensen.

         After the verdict, Christensen moved for a new trial under Fed. R. Crv. P. 59. Christensen argued there was insufficient proof that he harmed plaintiffs or was aware of the substantial risk of harm his actions imposed. The district court rejected these arguments, relying on plaintiffs' testimony that they never consented to Christensen's advances.

         The county also moved for judgment as a matter of law under Rule 50(b) and for a new trial under Rule 59. This resulted in partial yet hollow success for the county-the district court granted judgment to the county on plaintiffs' state law negligence claims, but denied the county judgment on plaintiffs' § 1983 claims, as well as a new trial.

         The district court rejected the county's contention that plaintiffs failed to prove it was culpable for and the cause of Christensen's violations, as required for liability under Monell v. New York City Dep't of Soc. Servs, 436 U.S. 658 (1978). Although the court noted the evidence against the county was "not overwhelming," it concluded three subjects supported the verdict: (1) jail supervisor Nargis "generally acknowledged his awareness of tier talk" at the jail; (2) Nargis was aware of sexual comments by correctional officers to inmates and female employees through the Jorgenson investigation, in addition to two comments made by Christensen; and (3) the county held only one PREA training session. For the district court, this was sufficient evidence for the jury to find "that Nargis and others within the [county] ... acted with deliberate indifference to the need for better training, supervision and policies." So the verdict against the county remained intact.[2]

         II. Discussion

         The county and Christensen both argue the district court improperly denied them judgment as a matter of law or a new trial under Rules 50 and 59. At the outset, we note Christensen never filed a post-verdict motion for judgment as a matter of law under Rule 50. Without such a motion, he forfeited his request for judgment under that rule, and our review is limited to his request for a new trial under Rule 59. See Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 400-01, 404-05 (2006); accord Collins v. Lochard, 792 F.3d 828, 831 (7th Cir. 2015).

         A district court may enter judgment as a matter of law under Rule 50 when it "finds that a reasonable jury would not have a legally sufficient evidentiary basis" to support its verdict. Fed. R .Civ. P. 50(a)(1); see also Rule 50(b). We review the denial of a Rule 50 motion de novo and proceed "on the basis of the evidence the jury actually had before it." Houskins v. Sheahan, 549 F.3d 480, 493 (7th Cir. 2008) (internal citation omitted) (denying Monell claim). We will overturn a jury verdict if it is clear plaintiffs failed to present enough evidence to support their claims. Id. (citing Filipovich v. K&R Express Sys., Inc., 391 F.3d 859, 863 (7th Cir. 2004)). "Our job is to assure that the jury had a legally sufficient evidentiary basis for its verdict." Filipovich, 391 F.3d at 863.

         Under Rule 59, a district court may order a new trial "for any reason for which a new trial has heretofore been granted in an action at law in federal court." Fed.R.Civ.P. 59(a)(1)(A). A new trial is appropriate if the jury's verdict is against the manifest weight of the evidence or if the trial was in some way unfair to the moving party. Martinez v. City of Chicago, 900 F.3d 838, 844 (7th Cir. 2018) (citation and quotation marks omitted). We will not disturb a district court's Rule 59 decision except under exceptional circumstances showing a clear abuse of discretion. Id.

         First, we consider whether the district court improperly refused to grant the county's motion for judgment as a matter of law. Later, we turn to Christensen's claim that he is entitled to a new trial.

         A. The County

         The county argues Monell precludes the jury's finding of § 1983 liability against it. Under Monell, "a municipality can be found liable under § 1983 only where the municipality itself causes the constitutional violation at issue." City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989) (emphasis in original); see also Connick v. Thompson, 563 U.S. 51, 60 (2011) ("[U]nder § 1983, local governments are responsible only for their own illegal acts." (emphasis in original)). Thus, a municipality cannot be held liable under § 1983 solely because one of its agents or employees may have violated an individual's constitutional right. Monell, 436 U.S. at 691, 694 (rejecting § 1983 liability predicated on theory of respondeat superior). Instead, a municipality's own policy or custom must have caused the constitutional violation. Id.; Glisson v. Indiana Dep't of Corr., 849 F.3d 372, 379 (7th Cir. 2017) (en banc) ("The central question is always whether an official policy ... caused the constitutional violation.").

         To establish municipal liability under Monell, a plaintiff must prove three things. First is the existence of an unconstitutional policy. This can be done by showing either: (a) an express policy that, when enforced, causes a constitutional deprivation; (b) a widespread practice that, although not authorized by written law or express policy, is so permanent and well settled as to constitute a custom or usage with the force of law; or (c) that the constitutional injury was caused by a person with final decision policymaking authority. Spiegel v. McClintic, 916 F.3d 611, 617 (7th Cir. 2019). Second is that the municipality is culpable, which means the municipality's policymakers were deliberately indifferent to a known or obvious risk that a policy or custom would lead to constitutional violations. Board of Comm'rs of Bryan Cty. v. Brown,520 U.S. 397, 407, 410 (1997) (citing Canton, 489 U.S. at 388). Third, ...

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