J.K.J. and M.J.J., Plaintiffs-Appellees,
Polk County and Darryl L. Christensen, Defendants-Appellants.
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.
Bauer, Brennan, and Scudder, Circuit Judges.
Brennan, Circuit Judge.
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.
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.
Christensen's Sexual Assaults
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.
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.
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.
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
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.
Policies and training
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.
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
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.
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.
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.
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.'"
plaintiffs alleged that jail staff routinely made sexually
inappropriate comments about female inmates without
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
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.
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.
Investigation of former guard
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. 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
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 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."
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.
Prison Rape Elimination Act (PREA)
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.
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.
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.
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
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.
Verdict and Post-Verdict Motions
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
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
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.
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.
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.
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).
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.
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
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.
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
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, ...