Rachel Slabey v. Dunn County, Wisconsin

2023 WI 2SUPREME COURT OF WISCONSIN
CASE NO.: 2020AP877
COMPLETE TITLE: Rachel Slabey,
Plaintiff-Appellant-Petitioner,
v.
Dunn County, Wisconsin, Dennis P. Smith, Brenda
LaForte, Marshall L. Multhauf and Paul Gunness,
Defendants-Respondents,
Dunn County Sheriff's Office, Ryan Boigenzahn,
John Doe One, John Doe Two and John Doe Three,
Defendants,
Wisconsin County Mutual Insurance Corporation,
Intervenor.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 399 Wis. 2d 323, 964 N.W.2d 549(year – unpublished)
OPINION FILED: January 18, 2023
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 10, 2022
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dunn
JUDGE: Maureen D. Boyle
JUSTICES:
ZIEGLER, C.J., delivered the majority opinion of the Court, in
which ROGGENSACK, REBECCA GRASSL BRADLEY, DALLET, and HAGEDORN,
JJ., joined. KAROFSKY, J., filed a dissenting opinion, in which
ANN WALSH BRADLEY, J., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-appellant-petitioner, there were briefs
filed by Cristina M. Wirth, Martha H. Heidt, and Bye, Goff &
Rohde, Ltd., River Falls. There was an oral argument by Cristina
M. Wirth.
For the defendants-respondents, there was a brief filed by
Samuel C. Hall, Jr., Timothy M. Johnson, Molly K. Woodford, and
Crivello Carlson, S.C., Eau Claire. There was an oral argument
by Samuel C. Hall, Jr.
An amicus curiae brief was filed by Mark L. Thomsen, Lynn
R. Laufenberg, Kimberly D. Sweatt, and Gingras, Thomsen & Wachs,
LLP, Madison, and James D. Rogers and Wisconsin Association for
Justice, Madison, for the Wisconsin Association for Justice.
2
2023 WI 2NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2020AP877
(L.C. No. 2017CV277)
STATE OF WISCONSIN : IN SUPREME COURT
Rachel Slabey,
Plaintiff-Appellant-Petitioner,
v.
Dunn County, Wisconsin, Dennis P. Smith, Brenda FILED
LaForte, Marshall L. Multhauf and Paul Gunness,
Defendants-Respondents, JAN 18, 2023
Dunn County Sheriff's Office, Ryan Boigenzahn, Sheila T. Reiff
Clerk of Supreme Court
John Doe One, John Doe Two and John Doe Three,
Defendants,
Wisconsin County Mutual Insurance Corporation,
Intervenor.
ZIEGLER, C.J., delivered the majority opinion of the Court, in
which ROGGENSACK, REBECCA GRASSL BRADLEY, DALLET, and HAGEDORN,
JJ., joined. KAROFSKY, J., filed a dissenting opinion, in which
ANN WALSH BRADLEY, J., joined.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 ANNETTE KINGSLAND ZIEGLER, C.J. This is a review of
an unpublished decision of the court of appeals, Slabey v. Dunn
County, No. 2020AP877, unpublished slip op. (Wis. Ct. App.
No. 2020AP877
July 7, 2021), affirming the Dunn County circuit court's1 order
granting summary judgment in favor of Dunn County on Rachel
Slabey's claim under 42 U.S.C. § 1983. We affirm.
¶2 Slabey argues that her § 1983 claim against Dunn
County survives summary judgment because she presented evidence
sufficient for a reasonable jury to find that Dunn County2
violated her rights under the Eighth and Fourteenth Amendments
to the United States Constitution when then-Dunn County
Correctional Officer Ryan Boigenzahn sexually assaulted her.
According to Slabey, Dunn County is liable because the "County
was deliberately indifferent to a substantial risk of harm to
Slabey by failing to thoroughly investigate, appropriately
discipline, and adequately supervise Boigenzahn." Slabey argues
that the circuit court erroneously granted Dunn County summary
judgment and that the court of appeals erred in affirming that
result.
¶3 We conclude that Slabey's § 1983 claim against Dunn
County fails because, under Monell v. Department of Social
Services, 436 U.S. 658 (1978), no reasonable fact finder could
conclude that Dunn County was the causal, moving force behind
the sexual assault. A § 1983 plaintiff suing a municipality for
a constitutional deprivation must prove that the municipality
caused——that is, was the moving force behind——the constitutional
1 The Honorable Maureen D. Boyle presided.
2 All references to "the County" are to Dunn County unless
otherwise noted.
2
No. 2020AP877
deprivation. This requires evidence "that the municipal action
was taken with 'deliberate indifference' as to its known or
obvious consequences." Bd. of Cnty. Comm'rs of Bryan Cnty. v.
Brown, 520 U.S. 397, 407 (1997) (quoting City of Canton v.
Harris, 489 U.S. 378, 388 (1989)). Here, there is insufficient
evidence demonstrating Dunn County acted with deliberate
indifference to a known or obvious consequence that Boigenzahn
would sexually assault Slabey. The circuit court was correct to
grant Dunn County summary judgment on Slabey's § 1983
constitutional deprivation claim. We affirm the court of
appeals.
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
¶4 Ryan Boigenzahn began working as a correctional
officer ("CO") at the Dunn County Jail in April 2011. As part
of his training, Dunn County required Boigenzahn to attend the
Jail Academy at Nicolet College. There, Boigenzahn took a
month-long, 160-hour course where, according to Boigenzahn, he
learned "what it is to be a corrections officer in the state of
Wisconsin." Boigenzahn was also required to participate in the
course's Prison Rape Elimination Act of 2003 ("PREA")3 training.
Boigenzahn admitted during his deposition that he "learn[ed]
through that training . . . that sexual contact between inmates
and prisoners was" prohibited by law. He passed the training
course, and he received his certification from the Law
Enforcement Standards Board in June 2012. Boigenzahn worked
3 34 U.S.C. §§ 30301-30309 (2018).
3
No. 2020AP877
third shift at the jail as a CO, which was from 10:30 p.m. to
7:00 a.m.
¶5 Dunn County also required Boigenzahn to review and
certify that he reviewed all Dunn County policies, including the
County's fraternization, sexual misconduct, and PREA policies.
Boigenzahn signed these policies, stating, "I certify that I
have read, understand, and will comply with the
policies . . . ." Dunn County's fraternization policy includes,
in relevant part:
Employees of the Dunn County Sheriff's Office shall
not:
a. Have a relationship with an inmate/prisoner or
the spouse of an inmate/prisoner under the
supervision or custody of the Dunn County Jail,
for one year after their release.
b. Have a relationship with individuals whom the
employee knows is [sic] incarcerated in a state
correctional facility or a county jail other than
the Dunn County Jail, or under the supervision of
the Wisconsin Department of Corrections
(Probation/Parole), or for one year after their
release.
c. Have personal contacts that are usually one-to-
one such as dating, knowingly form close
friendships, correspond without an exception
granted or have visits that are not job related,
for a period of one year after their release.
d. Accept or give gifts, provide services in
exchange for work performed, for one year after
their release.
e. Encourage or allow to occur, the exchange of
personal or departmental information between the
employee and an inmate.
4
No. 2020AP877
The sexual misconduct/PREA policy prohibits all staff, including
COs like Boigenzahn, from engaging in sexual misconduct, which
the policy defines as follows:
Sexual Misconduct is any behavior or act of a sexual
nature directed toward an inmate, detainee, victim,
witness, or complainant by any employee, volunteer,
vendor, contractor, visitor or agency representative.
1. This includes acts or attempts to commit such
acts including, but not limited to, sexual
assault, sexual abuse, sexual harassment, sexual
contact, conduct of a sexual nature or
implication, obscenity and unreasonable or
unnecessary invasion of privacy.
2. Sexual misconduct also includes, but is not
limited to, conversations or correspondence that
suggests a romantic or sexual relationship
involving any person mentioned above.
3. Sexual misconduct is not limited to unwanted
sexual contact. Sexual misconduct is also a
range of behaviors or situations that include
inappropriate remarks, sexualized name-calling,
correspondence, conversations, inappropriate
displays, fondling, inappropriate viewing, and
sexual contact with individuals vulnerable to the
authority of the justice system or any other
person in a work setting. Such acts are
inappropriate in a work setting and presumed to
be unwelcome.
4. Romantic relationships between supervisors and
those under their supervision are presumed to be
coercive and may be deemed sexual harassment or
misconduct.
Dunn County's sexual misconduct/PREA policy also requires staff
to report and investigate all alleged violations:
A. Reporting Requirements
1. Any employee or staff member who knows or
reasonably suspects that any employee may be or has
5
No. 2020AP877
been involved in sexual misconduct is required to
inform the Jail Captain. To protect the
reputations and integrity of all persons engaged in
such a process, including the accuser, the accused,
and the alleged victim, all such reports shall be
dealt with as matters of highest discretion both
before and after they have been submitted to
appropriate authorities.
. . . .
4. Upon receiving a report of possible sexual
misconduct or harassment, the Jail Captain shall
notify the Chief Deputy. The Chief Deputy shall in
turn notify the Sheriff and other Command Staff as
appropriate and needed.
B. Investigation
1. All reported violations of sexual misconduct,
including sexual assault and harassment, will be
investigated and, as warranted, will be resolved
through appropriate disciplinary processes and/or
criminal proceedings in accordance with applicable
state and federal laws.
Dunn County requires all staff, including COs like Boigenzahn,
to regularly complete policy reviews. According to Boigenzahn's
training log, he completed at least eight reviews of the
County's fraternization, sexual misconduct, or PREA policies.
After each policy review, Boigenzahn certified that he read and
understood the policy.
¶6 On July 31, 2015, a CO informed Sergeant Michael Owens
that inmate J.W.B. expressed that staff needed to "keep a close
eye on [the] 'male COs.'" Sergeant Owens immediately began
investigating. He first interviewed J.W.B. During the
interview, J.W.B. said that she observed Boigenzahn passing
notes between inmates on July 28, 2015. Sergeant Owens also
"asked her if one of [the] officers was developing a
6
No. 2020AP877
relationship with an inmate." J.W.B. said "no, nothing like
that." Sergeant Owens also reviewed surveillance footage of the
alleged incident and recorded phone conversations between the
inmates suspected of note-passing. He discovered no evidence of
misconduct and determined "[t]he allegation [was] not supported
on a factual basis." Sergeant Owens recorded the results of his
investigation in a report and, according to County policy,
forwarded that report to his supervisor.
¶7 On August 6, 2015, a different inmate, B.M., said to
Sergeant Douglas Ormson that "she actually had a lot of respect
for the staff at the Jail, except for one person who she felt
was in danger of 'crossing the line.'" Sergeant Ormson asked
B.M. who she was referring to and to elaborate. B.M. identified
Boigenzahn and said he "was too chummy with some of the
females." B.M. said she saw another inmate, A.D., "playfully
slap[] Officer Boigenzahn on the chest," and that A.D. and
Boigenzahn "talked quite a bit." Sergeant Ormson asked B.M. "if
she felt that anything else had happened." B.M. said "she
didn't think so, but she felt that if there was an opportunity
where there were no cameras around she felt something might
happen." B.M. also told Sergeant Ormson how "all the females in
the Jail talk about that, and about [Boigenzahn's] willingness
to talk to them," and how Boigenzahn "maybe liked the attention
from the females." Sergeant Ormson "asked her again if she had
witnessed anything sexual or even heard any rumors about that
type of relationship," and B.M. said she hadn't "but again said
her feeling was that was a possibility if things progressed."
7
No. 2020AP877
B.M. said she "knows that there is a 'bright line' that staff
aren't supposed to cross" and felt "if Officer Boigenzahn hasn't
already crossed that line that he is getting dangerously close
to doing it."
¶8 The next day, Sergeant Ormson discussed this matter
with Sergeant Owens, who stated he heard similar allegations,
and Sergeant Rachel Vold. The three decided that Sergeant Vold
would review surveillance footage to investigate the
allegations. Sergeant Vold reviewed two weeks of surveillance
footage and found two concerning instances. On July 29, 2015,
while delivering medications to inmates, Boigenzahn "playfully
reach[ed] out his foot to step on [A.D.]'s foot." On August 6,
2015, again while delivering medications, Boigenzahn "gesture[d]
with his head as if motioning someone to come in his direction,
and also with his right arm. [A.D.] then [came] running over to
him. . . . [A]s she walk[ed] away she brush[ed] him with her
hand on his shoulder/chest area." Pursuant to Dunn County
policy, Sergeant Vold forwarded this information to the Jail
Captain on August 10, 2015. The Jail Captain told Sergeant Vold
to interview A.D., which she did later that day.
¶9 During that interview, Sergeant Vold informed A.D.
that "at no time should there ever be any sort of contact with
an officer, male or female, whatsoever." Sergeant Vold "went on
to ask [A.D.] if there [were] any instances where she felt
uncomfortable [because of] any male or female officer." A.D.
said that Boigenzahn made her feel uncomfortable. A.D. reported
that three months prior, she and Boigenzahn "accidentally bumped
8
No. 2020AP877
hands" and that A.D. "pulled her hand back, where [Boigenzahn]
then responded that it was alright[;] he didn’t mind." A.D.
"went on to say that other female inmates . . . told her
[Boigenzahn] seems to be 'obsessed' with her and that they have
observed him standing and watching her sleep." Sergeant Vold
asked A.D. "if there were any other instances or officers that
made her feel uncomfortable, to which she responded no."
¶10 Later that same day, the Jail Captain and the Dunn
County Chief Deputy interviewed Boigenzahn regarding these
allegations. Boigenzahn initially denied passing notes between
inmates, but he admitted to doing so once the Jail Captain and
Chief Deputy reminded Boigenzahn that he could be terminated for
lying. Boigenzahn said he made a "dumb mistake passing the note
and it w[ould] not happen again." They also showed Boigenzahn
the videos of him and A.D., but he denied that there was any
inappropriate conduct. The Jail Captain and Chief Deputy
further discussed "policy violations, co-worker mistrust, and
inmates who now think there is a relationship between [A.D.] and
CO Boigenzahn." Boigenzahn explained that he "tries to gain
rapport or cooperation with inmates but now sees that he needs
to be sterner."
¶11 Pursuant to Dunn County policy, the matter was then
brought to the Dunn County Sheriff. Based on the results of the
investigation, the Sheriff decided that Boigenzahn violated Dunn
County's policies which prohibited fraternization and unbecoming
conduct. The Sheriff decided to impose discipline. The
available options were performance counseling, oral reprimand,
9
No. 2020AP877
written reprimand, unpaid suspension, and termination. The
Sheriff initially "was planning on terminating [Boigenzahn].
But [he thought that Boigenzahn] really had been a pretty good
jailer on a lot of other notes, . . . so the decision was made
to give him a three-day suspension and try and say wake up."
Accordingly, on August 26, 2015, Dunn County suspended
Boigenzahn for three days without pay. When communicating the
Sheriff's disciplinary decision, the Chief Deputy warned
Boigenzahn:
I expect you will take this opportunity to correct
your improper conduct in the future, fully meet the
duties and responsibilities required of you and
observe all the rules and procedures of your job. If
you fail to do so, you will subject yourself to
further disciplinary action, including discharge and
termination of your employment with the County.
Boigenzahn returned to work on August 29, 2015. The Sheriff
also considered moving Boigenzahn to the day shift so he could
be under greater supervision because more staff worked that
shift, but the Sheriff decided against this because "it would
affect somebody on day shift that would be bumped off from that
shift and forced onto the night shift."
¶12 About nine months later, in May 2016, inmate A.D.
reported to Sergeant Vold that Boigenzahn again acted
inappropriately. She stated that Boigenzahn frequently
contacted inmate B.S. A.D. stated that on one occasion
Boigenzahn accepted a note that was sexual in nature from B.S.
Surveillance footage showed that on April 17, 2016, at 2:32
a.m., Boigenzahn spent 12 minutes out of camera view and near
10
No. 2020AP877
B.S.'s bunk. Boigenzahn later admitted that he did receive the
note from B.S. On May 19, 2016, the County placed Boigenzahn on
administrative leave, and on May 31, 2016, he was terminated.
¶13 About one month after Dunn County terminated
Boigenzahn, on June 27, 2016, inmate Slabey was heard saying,
"[Boigenzahn] must have stuck his hand down somebody else's
pants, too." According to Slabey, she said this "jokingly."
Investigator Dan Westlund, however, who was at the jail to
interview Slabey regarding an unrelated matter, overheard
Slabey's remark. He immediately reported what he heard to the
Jail Captain. Pursuant to County policy, the Jail Captain
called her supervisor, the Chief Deputy, and the matter was
reported to the Sheriff. The Sheriff requested that an outside
agency investigate Slabey's allegations. The Menomonie Police
Department then investigated the allegations against Boigenzahn.
¶14 The criminal investigation regarding Slabey's
statement revealed that on March 25, 2016, about seven months
after Boigenzahn was first disciplined by the County, he
sexually assaulted Slabey. Boigenzahn entered the Huber Dorm4
and talked with Slabey and her bunkmate. Slabey was on the top
The Huber Dorm is an open area with bunk beds for inmates
4
on Huber work release. See generally Wis. Stat. § 303.08 (2019-
20).
11
No. 2020AP877
bunk in a location that was apparently out of camera view.5
According to Slabey, she "made a comment [to Boigenzahn] about
do you ever get in trouble . . . . And he's like yeah, I've
gotten in trouble before, he's like, but I can –- pretty much
saying he didn't care, you know." It is undisputed that during
this time, Boigenzahn began touching Slabey and put his hand
down her pants. Slabey told Boigenzahn, "no," and he pulled his
hand out. According to Slabey, Boigenzahn said, "you're not
going to tell on me, are you. . . . And [Slabey] told him no,
I'm not going to tell on you." Radio checks were typically
conducted after ten minutes of not hearing from a CO on rounds
and, according to Boigenzahn, he did receive a radio check the
night of the assault. There was however no radio check during
the 45 minutes Boigenzahn was with Slabey and her bunkmate.
Boigenzahn was charged and subsequently convicted and sentenced
to prison for second-degree sexual assault by correctional staff
contrary to Wis. Stat. § 940.225(2)(h) (2016-17).
¶15 Notably, it was just two days prior to the sexual
assault that, pursuant to Dunn County policy, Boigenzahn had
attended a legal update session that included PREA training.
Boigenzahn admitted that, at the time of the sexual assault, he
5 According to Slabey's deposition, also on or about
March 25, 2016, Slabey asked Boigenzahn "if [she] could move
down to the bottom bunk . . . because it was open." Slabey
claimed Boigenzahn "told [her], why would you want to move there
because this one is off camera view up here, and he said that
[she] couldn't move." Slabey took this to mean at the time that
it would be easier for her to have contraband if she remained on
the top bunk.
12
No. 2020AP877
knew it was against state law, against County policy, and
against PREA.
¶16 On November 15, 2017, Slabey commenced this action
against Dunn County under 42 U.S.C. § 1983, alleging that the
County violated her rights under the Eighth and Fourteenth
Amendments to the United States Constitution.6 Dunn County moved
for summary judgment, arguing that it was not liable under
§ 1983 because "the County did not act with deliberate
indifference to [Slabey's] safety," "there is no evidence upon
which a jury could find a Dunn County policy, custom, or
practice violated her constitutional rights," and "[Slabey's]
substantive due process rights were not violated by the County."
Slabey opposed summary judgment, arguing that there are
"sufficient facts to support a jury finding [of] deliberate
indifference" and that "Dunn County's informal custom/policy of
ignoring dangers to female inmates caused Slabey's [sexual]
assault."
¶17 The circuit court held a hearing on Dunn County's
motion and subsequently issued a written decision granting Dunn
County summary judgment. The court concluded, "There is no
evidence that [Dunn County's] training practices were
In her petition for review, Slabey asserted claims against
6
not just Dunn County but also several individual defendants
employed by the County. In her briefing, however, Slabey
asserts claims only against Dunn County and therefore has
abandoned her claims against the individual defendants. A.O.
Smith Corp. v. Allstate Ins. Companies, 222 Wis. 2d 475, 492,
588 N.W.2d 285 (Ct. App. 1998) ("[A]n issue raised on appeal,
but not briefed or argued, is deemed abandoned.").
13
No. 2020AP877
constitutionally deficient and that the County was aware of the
deficiency and failed to abate the deficiency."
¶18 Slabey appealed the circuit court's order. The court
of appeals affirmed, concluding there is "no evidence upon which
a reasonable fact finder could rely to conclude [Dunn County
was] deliberately indifferent to a substantial risk that
Boigenzahn would sexually assault an inmate." Slabey, No.
2020AP877, ¶1.
¶19 Slabey petitioned this court for review, which we
granted.
II. STANDARD OF REVIEW
¶20 "We independently review a grant or denial of summary
judgment, applying the same method as the circuit court."
Hoida, Inc. v. M&I Midstate Bank, 2006 WI 69, ¶15, 291
Wis. 2d 283, 717 N.W.2d 17. "While our review is independent
from the circuit court and court of appeals, we benefit from
their analyses," both of which concluded that summary judgment
is appropriate. DSG Evergreen Fam. Ltd. P'ship v. Town of
Perry, 2020 WI 23, ¶15, 390 Wis. 2d 533, 939 N.W.2d 564. "We
will affirm a grant of summary judgment when there are no
genuine issues of material fact and the moving party is entitled
to judgment as a matter of law." Baumeister v. Automated
Prods., Inc., 2004 WI 148, ¶11, 277 Wis. 2d 21, 690 N.W.2d 1.
"A factual issue is 'genuine' if the evidence is such that a
reasonable jury could return a verdict in favor of the non-
moving party." Midwest Neurosciences Assocs., LLC v. Great
14
No. 2020AP877
Lakes Neurosurgical Assocs., LLC, 2018 WI 112, ¶80, 384
Wis. 2d 669, 920 N.W.2d 767.
III. ANALYSIS
¶21 The parties do not dispute that Slabey suffered a
constitutional deprivation because she was sexually assaulted by
Boigenzahn.7 The issue in this case is not whether Boigenzahn
committed a sexual assault. He did, and what he did to Slabey
was terribly wrong. But a claim against Boigenzahn is not the
claim we analyze today. Whether Dunn County is liable to Slabey
under 42 U.S.C. § 1983 is an altogether separate legal inquiry.
In analyzing that issue, we must consider the exacting standards
set forth in Monell, 436 U.S. 658. In short, Slabey asserts
that "Dunn County was deliberately indifferent to a substantial
risk of harm to Slabey by failing to thoroughly investigate,
appropriately discipline, and adequately supervise Boigenzahn."8
¶22 Because the only issue before us is whether Dunn
County is liable to Slabey under § 1983, we must analyze the
standards outlined in Monell. We begin with an overview of
7 Though the issue is not before us, for purposes of this
review, we assume without deciding that Boigenzahn violated
Slabey's constitutional rights.
8 Slabey raised an additional issue in her opening brief,
arguing that Dunn County is not entitled to qualified immunity.
However, Dunn County does not argue here that it is entitled to
qualified immunity. Nor could it. It is well settled that
municipalities cannot assert qualified immunity. Owen v. City
of Independence, 445 U.S. 622 (1980) (holding that
municipalities are not entitled to qualified immunity); see also
Davis v. United States, 564 U.S. 229, 248 n.9 (2011)
(recognizing the same).
15
No. 2020AP877
municipal liability under § 1983. See Monell, 436 U.S. 658.
Specifically, the causation requirement in Monell is
dispositive. We then conclude that Slabey failed to demonstrate
that Dunn County's action or inaction was the moving force
behind her constitutional deprivation. Because Slabey cannot
demonstrate the requisite causation, we need not analyze the
other criteria of a municipality's liability in a § 1983 claim
under Monell.
A. Monell Liability Generally
¶23 Unlike any liability that may exist for an individual
like Boigenzahn, in order for a municipality to be liable in a
42 U.S.C. § 1983 action, the plaintiff must demonstrate that she
can satisfy the exacting standards set forth by Monell. Under
§ 1983,
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall
be liable to the party injured . . . .
In Monell, 436 U.S. 658, the United States Supreme Court
interpreted "person" within the meaning of § 1983 as including
local governing bodies. Monell involved public employees whose
employers "had as a matter of official policy compelled pregnant
employees to take unpaid leaves of absence before such leaves
were required for medical reasons." Id. at 660-61. The
employees sued the Department of Social Services and Board of
16
No. 2020AP877
Education of the City of New York for damages under § 1983. Id.
at 660-62. The Court held that the employees could sue these
local governing units:
Congress did intend municipalities and other local
government units to be included among those persons to
whom § 1983 applies. Local governing bodies,
therefore, can be sued directly under § 1983 for
monetary, declaratory, or injunctive relief where, as
here, the action that is alleged to be
unconstitutional implements or executes a policy
statement, ordinance, regulation, or decision
officially adopted and promulgated by that body's
officers.
Id. at 690 (footnotes and emphasis omitted).
¶24 However, the Court also explained that "Congress did
not intend municipalities to be held liable unless action
pursuant to official municipal policy of some nature caused a
constitutional tort." Id. at 691. "[A] municipality cannot be
held liable solely because it employs a tortfeasor——or, in other
words, a municipality cannot be held liable under § 1983 on a
respondeat superior theory." Id. (emphasis omitted). "Instead,
it is when execution of a government's policy or custom, whether
made by its lawmakers or by those whose edicts or acts may
fairly be said to represent official policy, inflicts the injury
that the government as an entity is responsible under § 1983."
Id. at 694. Monell and its progeny thus require a plaintiff to
satisfy each of the following to prove municipal liability under
§ 1983: (1) "identify a municipal 'policy' or 'custom' that
caused the plaintiff's injury"; (2) "the municipal action was
taken with the requisite degree of culpability"; and (3) there
17
No. 2020AP877
is "a direct causal link between the municipal action and the
deprivation of federal rights." Bryan Cnty., 520 U.S. at 403-
04. Because this case is resolved on the third requirement,
causation, we need not address the first two.
B. Section 1983 Causation Under Monell.
¶25 To prevail in her claim under 42 U.S.C. § 1983 against
Dunn County, Slabey must demonstrate that the County caused her
constitutional deprivation. Slabey argues that causation is
satisfied because (1) "Dunn County failed to thoroughly
investigate claims that Boigenzahn's conduct would cross a
line"; (2) "Dunn County failed to appropriately discipline
Boigenzahn in light of the clear risk of harm that his conduct
posed to inmates generally and Rachel Slabey specifically"; and
(3) Dunn County "failed to properly supervise Boigenzahn to
prevent any further escalation of his misconduct." Slabey
argues that these acts of the County caused her constitutional
deprivation because they "caused Boigenzahn's conduct to
escalate to Slabey's assault."
¶26 "Where a plaintiff claims that the municipality has
not directly inflicted an injury, but nonetheless has caused an
employee to do so, rigorous standards of . . . causation must be
applied to ensure that the municipality is not held liable
solely for the actions of its employee." Bryan Cnty., 520 U.S.
at 405. Monell requires plaintiffs to "demonstrate a direct
causal link between the municipal action and the deprivation of
federal rights." Id. at 397. "[M]ere 'but-for' causation is
insufficient." Harte v. Bd. of Comm'rs, 864 F.3d 1154, 1204
18
No. 2020AP877
(10th Cir. 2017) (quoting Bryan Cnty., 520 U.S. at 410).
Rather, a plaintiff bringing a § 1983 claim under Monell must
demonstrate that a municipality was not just a cause, but the
"moving force" behind the constitutional deprivation. Monell,
436 U.S. at 694-95.
¶27 Monell's causation requirement is a high bar for
plaintiffs to clear. "[L]esser standards . . . would require
the federal [and state] courts endlessly to 'second-guess' the
wisdom of municipal [programs], a task inappropriate for the
federal [and state] judiciar[ies]." Doe v. Taylor Indep. Sch.
Dist., 15 F.3d 443, 453 (5th Cir. 1994) (citing City of Canton,
489 U.S. at 392). The requirement is "applied with especial
rigor when the municipal policy or practice is itself not
unconstitutional, for example, when the municipal liability
claim is based upon inadequate training, supervision, and
deficiencies in hiring." Schneider v. City of Grand Junction
Police Department, 717 F.3d 760, 770 (10th Cir. 2013) (quoting
Martin A. Schwartz, Section 1983 Litigation Claims & Defenses
§ 7.12 (2013)). In such cases, a § 1983 plaintiff "must" prove
causation by showing "that the municipal action was taken with
'deliberate indifference' as to its known or obvious
consequences. A showing of simple or even heightened negligence
will not suffice." Bryan Cnty., 520 U.S. at 407 (citation
omitted). Evidence of a "pattern of tortious conduct" is
typically necessary to establish that the municipal action
"rather than a one-time negligent administration of the program
or factors peculiar to the officer involved in a particular
19
No. 2020AP877
incident, is the 'moving force' behind the plaintiff's injury."
Id. at 407-08 (citing City of Canton, 489 U.S. at 390-91); see
also Oklahoma City v. Tuttle, 471 U.S. 808, 824 (1985) ("[W]here
the policy relied upon is not itself unconstitutional,
considerably more proof than the single incident will be
necessary in every case to establish . . . the causal connection
between the 'policy' and the constitutional deprivation.").
¶28 Slabey acknowledges that hers is a "single incident"
case because of the "absence of prior sexual assaults of female
inmates by male guards." She argues that, although the single-
incident theory governs her claim, she nonetheless prevails
under that theory because "Dunn County acted with deliberate
indifference to a significant, obvious risk of sexual violence
to all female inmates."
¶29 Though not impossible, it is exceedingly rare that a
§ 1983 plaintiff under Monell can prove causation based on a
single incident.9 The United States Supreme Court first
9This rigorous standard is what drives our analysis.
Section 1983 plaintiffs suing municipalities must clear a high
bar——a bar that is even higher when alleging liability based on
a "single incident." For those who would relax this standard by
conflating it with our standard of review on summary judgment,
doing so would massively broaden the "single incident" exception
and "only invite jury nullification of Monell." City of Canton
v. Harris, 489 U.S. 378, 399 (1989) (O'Connor, J., concurring).
20
No. 2020AP877
recognized the possibility of such a claim in City of Canton v.
Harris, 489 U.S. 378. In City of Canton, officers failed to
seek medical attention for an arrested suspect despite the
suspect sitting on the floor of the patrol car, responding with
"an incoherent remark" when asked if she needed medical
attention, "slump[ing] to the floor on two occasions," and lying
on the floor. Id. at 381. The plaintiff argued that the
officers "were not provided with any special training (beyond
first-aid training) to make a determination as to when to summon
medical care for an injured detainee." Id. at 382. The Supreme
Court noted that a claim based on a single incident might
survive in some cases:
[I]t may happen that in light of the duties assigned
to specific officers or employees the need for more or
different training is so obvious, and the inadequacy
so likely to result in the violation of constitutional
rights, that the policymakers of the city can
reasonably be said to have been deliberately
indifferent to the need.
If this were not the well-established standard, we could
instead reinvent § 1983 law and analyze how Dunn County might
have merely allowed, rather than caused, Slabey's constitutional
deprivation. However, that would be a sea change in the law.
Causation under Monell requires much more than "but-for"
causation. Bd. of Cnty. Comm'rs of Bryan Cnty. v. Brown, 520
U.S. 397, 404, 410 (1997) (citing Monell v. Dep't of Soc.
Servs., 436 U.S. 658 (1978)). "In virtually every instance
where a person has had his or her constitutional rights violated
by a city employee, a § 1983 plaintiff will be able to point to
something the city 'could have done' to prevent the unfortunate
incident." City of Canton, 489 U.S. at 392. Whether Dunn
County could have done more is not the applicable legal
standard.
21
No. 2020AP877
Id. at 390. In such a situation, "the need to train . . . can
be said to be 'so obvious,' that failure to do so could properly
be characterized as 'deliberate indifference' to constitutional
rights." Id. at 390 n.10 (citation omitted). The Supreme Court
dismissed the § 1983 claim and concluded that "the evidence in
the record . . . does not meet th[is] standard of § 1983
liability." Id. at 392.
¶30 The Supreme Court again considered, but rejected, an
argument that this "single-incident" theory applied in Board of
Commissioners of Bryan County v. Brown, 520 U.S. 397. There,
the § 1983 plaintiff argued that the municipality was liable for
an officer's use of excessive force because it failed to
adequately screen the officer's background prior to hiring him,
and that such screening would have uncovered that the officer
was previously "charged with assault and battery, resisting
arrest, and public drunkenness." Id. at 412-13. The Court
reasoned, "[e]ven assuming without deciding that proof of a
single instance of inadequate screening could ever trigger
municipal liability, the evidence in this case was insufficient
to support a finding that, in hiring [the officer], [the
Sheriff] disregarded a known or obvious risk of injury." Id. at
412.
¶31 The Supreme Court also considered and rejected the
single-incident theory posed in Connick v. Thompson, 563 U.S. 51
(2011). In Connick a § 1983 plaintiff sued a municipality for a
constitutional deprivation caused by a prosecutor's failure to
turn over exculpatory evidence. Id. at 55-56. The Court
22
No. 2020AP877
reasoned that because prosecutors already received legal
training on the issue, the § 1983 plaintiff's constitutional
deprivation was not "so predictable that failing to train the
prosecutors amounted to conscious disregard for defendants[]."
Id. at 71 (emphasis omitted). The Court therefore concluded
that this case did not fall within the "narrow range of 'single-
incident' liability hypothesized in Canton as a possible
exception to the pattern of violations necessary to prove
deliberate indifference in § 1983 actions."10 Id. at 71-72.
¶32 The Tenth Circuit in Schneider v. City of Grand
Junction Police Department, 717 F.3d 760, similarly rejected use
of the single-incident theory in a § 1983 claim. There, an
officer sexually assaulted a 911 caller while responding to the
call. Id. at 763. The plaintiff argued that, in light of a
prior complaint against the officer, the municipality failed to
adequately investigate, discipline, and supervise the officer.
Id. at 766. The court rejected each of these claims against the
municipality. The court relied on the facts that the
municipality "conducted the criminal investigation regarding the
[prior] complaint," and it "disciplined [the officer] with a pay
cut and probation" along with a "notice of discipline [informing
10In each of these cases where the Supreme Court
hypothesized that single-incident theory could apply, the
plaintiffs brought failure-to-train claims, and the Court
considered the possibility that the theory might apply only in
such cases. We note that Slabey's claim is based on alleged
failures to investigate, discipline, and supervise Boigenzahn,
but not a failure to train him.
23
No. 2020AP877
the officer] that his conduct was unacceptable." Id. at 775,
777. As for the failure-to-supervise claim, the court found "no
evidence that additional controls or sanctions . . . would have
had any more deterrent effect than the already-present threats
of discharge and criminal punishment." Id. at 780.
¶33 Similarly, the First Circuit in Santiago v. Fenton,
891 F.2d 373, 382 (1st Cir. 1989), rejected a § 1983 claim that
was based on a single incident. The officer in Santiago used
excessive force against the plaintiff, who argued the
municipality failed to discipline the officer for an earlier
incident. Id. The court nonetheless concluded that the
municipality was entitled to summary judgment on the failure-to-
discipline claim and stated:
The city and the department undisputedly had a policy
of investigating complaints that expressly included
the disciplining of officers in appropriate
circumstances. In both of these instances the
department conducted an investigation and hearing but
decided that discipline was not appropriate. As we
have indicated before, we cannot hold that the failure
of a police department to discipline in a specific
instance is an adequate basis for municipal liability
under Monell.
Id.
¶34 Slabey places great reliance on the Seventh Circuit's
decision in J.K.J. v. Polk County, 960 F.3d 367 (7th Cir. 2020)
(en banc), where a § 1983 plaintiff succeeded on the single-
incident theory.11 In J.K.J., the Seventh Circuit concluded that
Four judges on the en banc panel dissented:
11 Circuit
Judges Easterbrook, Brennan, Bauer, and Sykes.
24
No. 2020AP877
Polk County, Wisconsin, acted with deliberate indifference "in
the face of an obvious and known risk that its male guards would
sexually assault female inmates." Id. at 381 (emphasis
omitted). That case involved two inmates at the Polk County
Jail who "endured repeated sexual assaults at the hands of [a]
correctional officer." Id. at 370.
¶35 When Polk County had earlier learned of similar
allegations against a different guard, it "imposed minor
discipline on the guard but from there took no institutional
response——no review of its policy, no training for guards, no
communication with inmates on how to report such abuse, no
nothing." Id. at 370-71. The jail's Captain "knew of sexual
comments male guards made about female inmates" and "admitted to
himself participating in [it]." Id. at 382. The Captain also
knew that an officer's conduct "began with watching [the inmate]
shower, grew to requests to expose her body for him, and in time
intensified to forcibly touching her in a sexual manner——all the
while ordering her to 'keep quiet.'" Id. Importantly, "with
red lights flashing, Polk County chose the one unavailable
option——doing nothing. It did not change its sexual abuse
policy, institute a training, inquire of female inmates, or even
call a staff meeting." Id. at 383. Although Polk County did
investigate and reprimand a guard for inappropriate sexual
behavior, jail officials assured him that it was "not a big
deal." Id.
¶36 Unlike Polk County, this record reflects that Dunn
County in fact required significant, relevant training of its
25
No. 2020AP877
officers and took nearly immediate action upon a complaint of
noncompliant conduct. Dunn County thoroughly investigated the
August 2015 complaint and acted in a timely manner to impose
unpaid leave on the officer. Boigenzahn was sternly warned for
the policy violations, which were passing notes between inmates
and non-sexual physical contact with an inmate. He was warned
that his behavior would not be tolerated and that he could be
terminated. Leave without pay was one of the most severe
options of discipline, just short of termination. When
Boigenzahn returned to duty, he was required to continue
training and monthly policy reviews.
¶37 Nine months had gone by with Boigenzahn working as a
CO, and there was no indication of his noncompliance. The very
next time the County learned that Boigenzahn was noncompliant
because he had received a note from an inmate, he was
terminated. In fact, unlike the facts in Polk County, Dunn
County first gained knowledge of this off-camera sexual assault
only after the County had already terminated Boigenzahn.
¶38 Slabey argues Dunn County acted with deliberate
indifference to a known or obvious consequence that Boigenzahn
would sexually assault an inmate when it "failed to thoroughly
investigate claims that Boigenzahn's conduct would cross a
line," "failed to appropriately discipline Boigenzahn in light
of the clear risk of harm that his conduct posed to inmates
generally and Rachel Slabey specifically," and when it "failed
to properly supervise Boigenzahn to prevent any further
escalation of his misconduct." However, this allegation in the
26
No. 2020AP877
August 2015 complaint was thoroughly investigated. The County
officials reviewed two weeks of surveillance video, interviewed
inmates, and concluded that Boigenzahn committed a serious
violation of County policy. The evidence demonstrated that
Boigenzahn passed notes between inmates and had inmate non-
sexual contact. The County acted within a month from allegation
to discipline. The matter did not languish. Despite several
less severe options, Boigenzahn was suspended for three days
without pay and sternly warned, "If you fail to [correct your
improper conduct], you will subject yourself to further
disciplinary action, including discharge and termination of your
employment with the County." He was also given additional PREA
training two days before the assault. For about nine months
after Boigenzahn returned, Dunn County had no reason to believe
he was noncompliant.
¶39 Nonetheless, Slabey argues that the County should have
done more and, because it did not, it caused her constitutional
deprivation. In other words, she argues that the County's
deliberate indifference "caused Boigenzahn's conduct to escalate
to Slabey's assault." However, Slabey offers insufficient
evidence of how the County was deliberately indifferent given
its policies, training, investigation, discipline, and
additional stern warning of termination for conduct quite unlike
a sexual assault. According to Slabey, the only way to
safeguard against the wrong that was done to her would be that
the County should have terminated Boigenzahn, constantly
supervised him, or not allowed him to have any contact with
27
No. 2020AP877
female inmates.12 However, the record reflects that three COs
worked the night shift, with two splitting up to do rounds in
different parts of the Jail and the third staying in the central
office.13 Additionally, staffing restrictions prevented the
County from moving Boigenzahn off the night shift. In other
words, constant supervision or moving Boigenzahn were unworkable
options given Dunn County's Jail; therefore, the only acceptable
option in hindsight would have been to terminate Boigenzahn for
passing notes and nonsexual conduct. Accepting Slabey's
arguments would make the County liable on a respondeat superior
theory, a result the Supreme Court has explicitly rejected.
Monell, 436 U.S. at 691.
¶40 In short, Dunn County is entitled to summary judgment
because there is insufficient evidence for a reasonable fact
finder to conclude that Dunn County was the moving force behind
her being sexually assaulted. Boigenzahn sexually assaulting
Slabey was the result of his action, which was completely
forbidden by Dunn County and the criminal law. It is hindsight
12Slabey also identifies the County's failure to conduct a
radio check during the 45 minutes that Boigenzahn was with
Slabey, and its failure to make sure Slabey's bunk was in view
of a surveillance camera as acts of deliberate indifference.
However, these demonstrate the kind of "one-time negligent
administration of [a] program" that is insufficient to satisfy
Monell causation. Bryan Cnty., 520 U.S. at 408.
13 The Jail Captain testified in her deposition that
typically three COs worked the night shift, and that one of them
stayed in the central office at all times. Boigenzahn testified
in his deposition that two COs "split up" to do facility-wide
checks.
28
No. 2020AP877
alone that underlies Slabey's causation theory. Causation in
the context of a § 1983 claim requires much more. "[L]esser
standards . . . would require the federal [and state] courts
endlessly to 'second-guess' the wisdom of municipal [programs],
a task inappropriate for the federal [and state] judiciar[ies]."
Doe, 15 F.3d at 453 (citing City of Canton, 489 U.S. at 392).
Taken together, these facts do not demonstrate that the known or
obvious consequence of the County's action or inaction was that
Boigenzahn would sexually assault an inmate.
¶41 Overall, Slabey's allegations do not rise to the level
of a cognizable § 1983 claim against Dunn County. Just because
the County could have, in hindsight, done some things
differently, does not mean that the County was the moving force
behind the assault. Section 1983 "does not provide plaintiffs
or courts carte blanche to micromanage local governments
throughout the United States." Connick, 563 U.S. at 68. The
standards of a § 1983 claim under Monell are exacting. Slabey's
claim does not survive that scrutiny.
IV. CONCLUSION
¶42 Slabey argues that her 42 U.S.C. § 1983 claim against
Dunn County survives summary judgment because she presented
evidence sufficient for a reasonable jury to find that Dunn
County violated her rights under the Eighth and Fourteenth
Amendments to the United States Constitution when Boigenzahn
sexually assaulted her. According to Slabey, Dunn County is
liable because the "County was deliberately indifferent to a
substantial risk of harm to Slabey by failing to thoroughly
29
No. 2020AP877
investigate, appropriately discipline, and adequately supervise
Boigenzahn." Slabey argues that the circuit court erroneously
granted Dunn County summary judgment, and that the court of
appeals erred in affirming that result.
¶43 We conclude that Slabey's § 1983 claim against Dunn
County fails because, under Monell, no reasonable fact finder
could conclude that Dunn County was the causal, moving force
behind the sexual assault. A § 1983 plaintiff suing a
municipality for a constitutional deprivation must prove that
the municipality caused——that is, was the moving force behind——
the constitutional deprivation. This requires evidence "that
the municipal action was taken with 'deliberate indifference' as
to its known or obvious consequences." Bryan Cnty., 520 U.S. at
407 (quoting City of Canton, 489 U.S. at 388). Here, there is
insufficient evidence that Dunn County acted with deliberate
indifference to a known or obvious consequence that Boigenzahn
would sexually assault Slabey. The circuit court was correct to
grant Dunn County summary judgment on Slabey's § 1983
constitutional deprivation claim. We affirm the court of
appeals.
By the Court.—The decision of the court of appeals is
affirmed.
30
No. 2020AP877.jjk
¶44 JILL J. KAROFSKY, J. (dissenting). "The confinement
setting is a tinderbox for sexual abuse." J.K.J. v. Polk Cnty.,
960 F.3d 367, 381 (7th Cir. 2020).
¶45 While women are vulnerable almost everywhere in our
society, they are especially at risk in correctional settings
where an estimated 25 to 41 percent of incarcerated women are
sexually abused. Hannah Brenner et al., Bars to Justice: The
Impact of Rape Myths on Women in Prison, 17 Geo. J. Gender & L.
521, 537-38 (2016). In such settings female prisoners are
dependent on guards (who are disproportionately male) for their
very existence. This includes "their safety as well as their
access to food, medical care, recreation and even contact with
family members." J.K.J., 960 F.3d at 381. Due to the
imbalances of power, the correctional context is ripe for abuse
as "[p]rison rape represents the intersection of masculine
elitism and deprivations of civil rights." Maureen Brocco,
Facing the Facts: The Guarantee Against Cruel and Unusual
Punishment in Light of PLRA, Iqbal, and PREA, 16 J. Gender Race
& Just. 917, 917 (2013). Sexual abuse is about power and
control and "this psychosocial dynamic is amplified in the
prison context." Id.¶46 Victims of sexual abuse often confront profound
physical, social, and psychological effects. These effects can
be debilitating and overwhelming, and they are magnified in
confinement settings. "Victims often endure great physical pain
and sustain various injuries. Moreover, any episode of sexual
assault could ultimately prove deadly since incarcerated victims
1
No. 2020AP877.jjk
are at an increased risk of contracting sexually transmitted and
other communicable diseases such as HIV, AIDS, tuberculosis, and
hepatitis B and C." Kevin R. Corlew, Congress Attempts to Shine
a Light on a Dark Problem: An In-Depth Look at the Prison Rape
Elimination Act of 2003, 33 Am. J. Crim. L. 157, 160 (2006).
¶47 To combat the scourge of sexual assaults in the
confinement setting, Congress passed the Prison Rape Elimination
Act (PREA) in 2003. But the enactment of a law aimed at
stopping prison rapes does not in and of itself put an end to
sexual violence. Prisons and jails must take steps to prevent
and detect sexual misconduct. And important to this case, when
sexual abuse does occur, it is incumbent on the judicial system
to hold to account those who are responsible in order to protect
vulnerable inmates. It is here where the majority falls short.
In wrongly concluding that the circuit court's grant of summary
judgment for Dunn County should be upheld, the majority allows
the county to escape all responsibility for (1) ignoring clear
warning signs that former Dunn County correctional officer Ryan
Boigenzahn had engaged in inappropriate and escalating behavior
with female inmates, and (2) creating the circumstances that
allowed Boigenzahn to sexually assault Rachel Slabey while she
was incarcerated in the Dunn County Jail.
2
No. 2020AP877.jjk
I. BACKGROUND
¶48 Boigenzahn sexually assaulted Slabey1 while she was in
her bunk in the Dunn County Jail on March 25, 2016.2 It was the
middle of the night in the Huber Dorm.3 Boigenzahn was tasked
with checking the women's dorm despite his recent suspension for
violating the jail's fraternization policy. Boigenzahn surveyed
the women's dorm alone, unmonitored, and entirely unsupervised.
That night, Boigenzahn spent 45 minutes in Slabey's dorm, an
extraordinarily long time compared to the few seconds that
guards usually took to check the dorm during the night. And
although the Dunn County Jail practice is for the central office
of the jail to conduct radio checks when an officer fails to
report back to the central office after 10 minutes, no
supervisor checked in on Boigenzahn during the 45 minutes he was
in the dorm, despite his known history of fraternization. By
1 Normally, to protect the dignity and privacy of Slabey, a
victim of sexual assault, I would use initials or pseudonyms to
identify her. However, because Slabey filed this lawsuit using
her real name, I do not follow that practice for her here. To
protect the dignity and privacy of other inmates, who were
witnesses or victims of Boigenzahn, I use initials.
2 Mindful that this is a summary judgment review, I will set
out the factual background necessary to understanding this case
by presenting Slabey's evidence as true while drawing all
reasonable inferences in her favor, as the court must when
reviewing a summary judgment decision. See Burbank Grease
Servs., LLC v. Sokolowski, 2006 WI 103, ¶40, 294 Wis. 2d 274,
717 N.W.2d 781.
3 A Huber facility is a county correctional facility that
houses inmates who have been granted leave privileges (typically
work release) under Wis. Stat. § 303.08(1). See Wis. Stat.
§ 303.09.
3
No. 2020AP877.jjk
all accounts, no one was monitoring Boigenzahn as he abandoned
his duties to prowl around Slabey's dorm.
¶49 The jail assigned Slabey to the only bunk in the dorm
that was entirely unmonitored by security cameras, a fact both
Boigenzahn and Slabey knew. Boigenzahn himself previously
denied Slabey's request to be moved to a different bunk.
Additionally, the jail recently transferred Slabey from
administrative segregation, causing her concern that if she did
anything to "make a scene" or displease Boigenzahn, she would be
transferred back. And, unsurprisingly, Slabey did not think
that anyone would believe her or protect her if she spoke up and
complained about Boigenzahn. In a word, Slabey was vulnerable.
¶50 Armed with the knowledge of his victim's
vulnerabilities, Boigenzahn entered the Huber Dorm, found Slabey
and her bunkmate, D.S., and began talking with them. One of the
topics of conversation was Boigenzahn's reputation for spending
an inappropriate amount of time with female inmates. Slabey
"made a comment [to Boigenzahn] about do you ever get in trouble
. . . . And [Boigenzahn was] like yeah, I've gotten in trouble
before, he's like, but I can——pretty much saying he didn't care,
you know." As he was talking to the inmates, Boigenzahn began
touching Slabey, first by rubbing her hand. Slabey tried to
protect herself by moving away and lying down, but Boigenzahn
persisted. He went after her, grabbing her pants, then her leg,
then Boigenzahn shoved his hand down Slabey's pants and inside
her underwear.
4
No. 2020AP877.jjk
¶51 While Boigenzahn was sexually assaulting her, Slabey,
now completely defenseless, went silent. She did not want to
call attention to his actions "because it was so quiet in there"
and she "didn't want to have a scene or have him say something
like, oh, [she] did something and put [her] back in
[segregation]." During the sexual assault, Slabey felt
"confused," "in shock" and "didn't know what to do." After
sexually assaulting her, Boigenzahn asked Slabey if she would
tell anyone. Slabey told him no, and soon after, Boigenzahn
left the Huber Dorm.
¶52 This sexual assault did not occur without warning. It
was not a freak occurrence, a force majeure that could have
neither been foreseen nor prevented. Instead, sheriff's
department officials——importantly here, the Sheriff himself——
first ignored the clear warning signs that Boigenzahn had
already engaged in inappropriate and escalating behavior with
female inmates, and then created the circumstances that allowed
Boigenzahn to sexually assault Slabey.
¶53 Prior to the sexual assault, the Sheriff had ample
warning that Boigenzahn was, in the words of one inmate,
"dangerously close to crossing the line." Sheriff's department
officials were first alerted to Boigenzahn's conduct in July
2015, about eight months before the sexual assault. Inmate
J.W.B. informed a correctional officer, and subsequently a jail
sergeant, that officials needed to "keep a close eye on" the
5
No. 2020AP877.jjk
male correctional staff.4 When asked for an example, J.W.B.
explained that on two separate occasions, an officer passed
notes between female and male inmates. J.W.B. originally
refused to identify the officer in question for fear of
retaliation, but upon further questioning, she identified
Boigenzahn. Passing notes was a violation of the Dunn County
Jail's fraternization policy, one that historically resulted in
suspension or termination. Despite the seriousness of the
allegations, the sergeant only reviewed surveillance video for
one of the two instances J.W.B. reported, and he failed to
question Boigenzahn or the inmates directly. After this cursory
investigation, the sergeant concluded that there was no factual
basis for J.W.B's claims.
¶54 About one week later, another inmate, B.M., told a
different sergeant that Boigenzahn was dangerously close to
"crossing the line," and that he had been getting "too chummy"
with some of the female inmates. B.M. said that she had not yet
witnessed anything sexual, but she believed "that was a
possibility if things progressed." As an example, she told this
4When questioned whether her concerns were "in regards to
fraternization," J.W.B. indicated that she did not understand
what fraternization meant. The sergeant then asked whether the
officer "was developing a relationship with an inmate." J.W.B.
answered in the negative, but there was no additional
explanation of what the sergeant meant by "relationship" in that
context nor any additional attempt to understand what J.W.B.
understood "relationship" to mean. This exchange illustrates
how important it is to ensure that female inmates (as well as
guards) understand "what abuse entails," particularly since
"they may come from life experiences that have blurred the lines
of abnormal and normal relationships." J.K.J. v. Polk Cnty.,
960 F.3d 367, 375 (7th Cir. 2020).
6
No. 2020AP877.jjk
sergeant that Boigenzahn had been talking with another inmate,
A.D., when A.D. playfully slapped Boigenzahn on the chest. B.M.
said that if there was an opportunity when there were no cameras
around, "something might happen," and "all the females in the
Jail talk about that." If Boigenzahn hadn't already crossed the
"bright line" that staff are not supposed to cross, B.M. said,
"he [was] getting dangerously close to doing it."
¶55 In response to the above reports, sheriff's department
officials reviewed surveillance footage and found two incidents
that corroborated B.M.'s concerns. First, on July 29,
Boigenzahn entered the Huber Dorm, stepped out of camera range
for a few minutes, then stepped back into view when another
officer entered the room. While the other officer was handing
out breakfast, Boigenzahn reached out and "playfully" stepped on
A.D.'s foot. She then stepped back on his foot. Second, on
August 6, Boigenzahn entered the dorm and shut the door behind
him. He gestured "as if motioning someone to come in his
direction," at which point A.D. ran over to him and "brush[ed]
him with her hand on his shoulder/chest area."
¶56 Sheriff's department officials then questioned A.D.,
asking her whether any officer ever made her feel uncomfortable.
A.D. "immediately" informed the officials that Boigenzahn made
her feel uncomfortable and provided the following three
examples. First, she described an instance where her hand and
Boigenzahn's hands accidentally touched. She pulled her hand
away and apologized, but he responded that "it was alright, he
didn't mind." Second, other inmates told her that Boigenzahn
7
No. 2020AP877.jjk
seemed to be "obsessed" with her, and they observed him standing
and watching her sleep. Third, she explained that he just
"lingered too long" around her. Like J.W.B., A.D. explained
that she did not report Boigenzahn sooner because she was afraid
of retaliation. In response to A.D.'s statements, the sergeant
pressed A.D. and asked "if there had ever been anything more
than statements made or him watching her." In doing so, the
sergeant seemingly dismissed A.D.'s claim that Boigenzahn was
obsessed with her, watched her sleep, and lingered too long
around her, as if that information alone were unimportant to the
investigation.
¶57 Sheriff's department officials then met with
Boigenzahn and questioned him about the inmates' allegations.
Boigenzahn initially lied to the officials and denied passing
notes between inmates, only confessing after he learned that he
would be terminated if he were not truthful. He denied that he
acted inappropriately toward A.D., which officials also found to
be false.
¶58 Despite knowing that Boigenzahn had, at the very
least, violated the jail's fraternization policy and attempted
to conceal and lie about his violations, the Sheriff decided
against terminating Boigenzahn. The Sheriff made this choice
despite the fact that violations of the fraternization policy
"historically" resulted in termination, and despite the fact
that Boigenzahn's lying, in and of itself, was grounds for
termination. The Sheriff opted instead for a far more lenient
response and suspended Boigenzahn for three days before allowing
8
No. 2020AP877.jjk
him to return to work——in the same position——where he continued
to have unfettered access to vulnerable women inmates. The
Sheriff did not put Boigenzahn on a different shift, one where
more staffing would allow for more supervision. He did not
assign Boigenzahn to a different section, away from female
inmates. He did not bar Boigenzahn from having further
unsupervised contact with female inmates; in fact, he did not
assign any staff to further monitor or investigate Boigenzahn at
all. Instead, the Sheriff sent an officer who violated jail
policies, lied to officials, and raised such serious red flags
that multiple inmates reported him despite fears of retaliation,
back to guard female inmates on the lightest-staffed shift with
little to no monitoring. And that is how former officer
Boigenzahn accessed, cornered, and sexually assaulted, Slabey on
March 25, 2016.
II. ANALYSIS
¶59 When Dunn County took Slabey into custody, it assumed
an affirmative duty to protect her from harm. DeShaney v.
Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 199-200
(1989) ("When the State takes a person into its custody and
holds [her] there against [her] will, the Constitution imposes
upon it a corresponding duty to assume some responsibility for
[her] safety and general well-being."). Sexual assault is one
of those harms, for while the Eighth Amendment "does not mandate
comfortable prisons," sexual assault "is simply not part of the
penalty that criminal offenders pay for their offenses against
society." See Farmer v. Brennan, 511 U.S. 825, 832-834 (1994)
9
No. 2020AP877.jjk
(internal citations omitted). Sexual offenses "tend . . . to
cause significant distress and often lasting psychological
harm," Washington v. Hively, 695 F.3d 641, 643 (7th Cir. 2012),
and there is little doubt that Slabey's Eighth Amendment rights
were violated when Boigenzahn sexually assaulted her. The only
question here is whether Slabey may hold Dunn County accountable
under 42 U.S.C. § 1983, which "plainly imposes liability on a
government that, under color of some official policy, 'causes'
an employee to violate another's constitutional rights." See
Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S.
658, 692 (1978).
¶60 While the standards for establishing municipal
liability under § 1983 are rigorous, "they are not
insurmountable." J.K.J., 930 F.3d at 378. In order to
establish liability and survive summary judgment on her claim
against Dunn County, Slabey must bring sufficient evidence for a
jury to reasonably find that Dunn County (1) had an official
policy, custom, or decision, (2) that demonstrated the requisite
level of culpability, and (3) caused her injury. See Bd. of
Cnty. Comm'rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 403-
404 (1997). I will discuss each of these elements in turn
before explaining why a jury could reasonably find for Slabey on
each.
¶61 First, Slabey must identify an official Dunn County
policy or custom that caused her injury. Monell, 436 U.S. at
690. The Supreme Court has recognized that a decision by an
official with final policy-making authority meets this
10
No. 2020AP877.jjk
requirement——that is, municipal liability attaches when "a
deliberate choice to follow a course of action is made from
among various alternatives by the official or officials
responsible for establishing final policy with respect to the
subject matter in question." Pembaur v. City of Cincinnati, 475
U.S. 469, 483 (1986). Inaction, as well as action, may serve as
the basis for municipal liability, depending on the
circumstances. Connick v. Thompson, 563 U.S. 51, 61-62 (2011)
("[a] policy of inaction in light of notice that its program
will cause constitutional violations is the functional
equivalent of a decision by the city itself to violate the
Constitution." (internal citations omitted)).
¶62 Second, Slabey must establish Dunn County's
culpability, which under Monell means that she must provide
sufficient evidence for a jury to find that the county's actions
demonstrated a "deliberate indifference" to the "known or
obvious" consequence that a constitutional violation would
occur. Bryan Cnty., 520 U.S. at 407. While a pattern of
constitutional violations is "ordinarily necessary" to establish
the requisite notice that an official course of conduct is
inadequate, the risk of a constitutional violation may be so
obvious that the municipality's actions could demonstrate
deliberate indifference to that risk. See Connick, 563 U.S. at
64. The Supreme Court in City of Canton v. Harris provided the
following example of deliberate indifference: if city policy-
makers, having armed their police officers with firearms, fail
to train those officers on the constitutional limitations on
11
No. 2020AP877.jjk
deadly force, that failure could be characterized as deliberate
indifference. City of Canton, Ohio v. Harris, 489 U.S. 378, 390
n. 10 (1989). The Seventh Circuit in Glisson v. Indiana
Department of Corrections provided another example: the failure
to establish coordinated care protocols for inmates with chronic
illnesses could reflect deliberate indifference if a jury found
the need for those protocols obvious, even absent prior
constitutional violations. Glisson v. Ind. Dep't of Corr., 849
F.3d 372, 382 (7th Cir. 2017). And in J.K.J. v. Polk County the
Seventh Circuit provided another, one relevant to this case: the
failure to institute more robust policies to prevent the sexual
assault of female inmates in the face of a guard's escalating
behavior can demonstrate deliberate indifference to the known or
obvious risk of sexual assault. J.K.J., 960 F.3d at 385.
¶63 Third, Slabey must establish sufficient evidence for a
jury to find that Dunn County's actions caused her injury. That
is, the official actions must be the "moving force" behind the
constitutional violation. Bryan Cnty., 520 U.S. at 400 (1997).
A municipality cannot be held vicariously liable for the actions
of its employee solely because it employed that employee.
Monell, 436 U.S. at 691. Instead, the plaintiff must
"demonstrate a direct causal link between the municipal action
and the deprivation of federal rights." Bryan Cnty., 520 U.S.
at 404.
¶64 Slabey established sufficient evidence for a jury to
find for her on each of these three requirements by: (1)
identifying a course of action by a final policy-maker——namely,
12
No. 2020AP877.jjk
the Sheriff's choice to return Boigenzahn to his standard shift
with no additional supervision; (2) alleging sufficient evidence
for a jury to conclude that the risk of sexual assault was so
predictable that the Sheriff's course of action constituted
deliberate indifference; and (3) alleging sufficient evidence to
show that the Sheriff's course of action caused the sexual
assault. Her § 1983 claim against Dunn County should therefore
survive summary judgment. I address how Slabey met each
requirement in more detail below.
A. Official Policy, Custom, or Decision
¶65 Slabey met the first requirement for municipal
liability under § 1983 because she identified a "deliberate
choice to follow a course of action" by a final policy-maker.
See Pembaur, 475 U.S. at 483. As Slabey points out, and Dunn
County does not dispute, the Sheriff was the final policy-maker
for staffing and disciplinary decisions at the Dunn County Jail.
And he, as that final policy-maker, deliberately chose to adopt
a particular course of action——to retain Boigenzahn and send him
back to guard female inmates alone, on the lightest-staffed
shift, with no additional supervision, investigation, or follow-
13
No. 2020AP877.jjk
up.5 The Sheriff had "various alternatives" to his course of
action. See Pembaur, 475 U.S. at 483. One of those
alternatives was to terminate Boigenzahn. Termination was not
just an option, but (as the Sheriff acknowledged), the typical
disciplinary response for violations of the fraternization
policy. Another alternative was to adjust Boigenzahn's schedule
to accommodate increased supervision and monitoring of his
behavior. The Sheriff considered these alternatives, but
instead chose the one course of action that would allow
Boigenzahn to spend significant time alone and unmonitored with
female inmates.
¶66 Slabey may not have identified a written policy that
caused her injury, but she does not need to. Monell liability
attaches where "a deliberate choice to follow a course of action
Because Slabey focused on this particular course of
5
action, this dissent will too. However, I note that in similar
cases, plaintiffs have presented expert testimony identifying a
variety of additional measures that jails must take to protect
female inmates from sexual assaults. These measures include
"informing guards of the inherent vulnerability the confinement
setting presents to female inmates, educating jailers on the
symptoms of an inmate suffering from the trauma of abuse,
requiring officers to report each other's misconduct, or taking
any time to otherwise instruct guards on matters of prevention
and detection." J.K.J., 960 F.3d 367 at 379. Prevention and
detection measures also include: a designated PREA coordinator,
staff training on what to look for and how to report abuse as
well as how to make inmates feel comfortable coming forward,
taking additional care with job assignments within facilities,
ensuring that all inmates understand their right to be free from
sexual abuse and harassment as well as making sure inmates
understand what abuse entails, and a confidential way for
inmates to report abuse. Id. at 375. An additional, vital, and
seemingly obvious prevention measure is not allowing male guards
to be alone and unmonitored with female prisoners. Cash v.
Cnty. of Erie, 654 F.3d 324, 331 (2d Cir. 2011).
14
No. 2020AP877.jjk
is made among various alternatives by the official or officials
responsible for establishing final policy with respect to the
subject matter in question." Pembaur, 475 U.S. at 483. Slabey
sufficiently identified that deliberate choice here.
B. Culpability
¶67 Slabey also met the culpability requirement because
she presented enough evidence for a jury to reasonably find that
the Sheriff's official course of action was taken with
deliberate indifference to the known or obvious risk that a
sexual assault would occur. Whether the risks were known or
obvious and whether the Sheriff acted with deliberate
indifference are questions of fact. See Sherrod v. Lingle, 223
F.3d 605, 611 (7th Cir. 2000). Next I demonstrate how a jury,
assessing the facts of this case, could reasonably conclude
that: (1) Boigenzahn’s prior behavior created a known or obvious
risk that he would sexually assault an inmate and (2) the
Sheriff's decision to send Boigenzahn back to guard female
inmates reflected deliberate indifference to that risk.
1. Known or Obvious Risk of Sexual Assault
¶68 When evaluating Boigenzahn's prior conduct to
determine whether the risk of sexual assault was known or
obvious, it is important to note that "consent is not an issue"
when a correctional officer has "sexual contact or sexual
intercourse with an individual who is confined in a correctional
institution if the actor is a correctional staff member." Wis.
Stat. §§ 940.225(2)(h), 940.225(4). In enacting Wis. Stat.
§ 940.225(2)(h), the legislature barred consent from being a
15
No. 2020AP877.jjk
defense in this context because it recognized that the power
imbalance between correctional staff and inmates in the
confinement setting, coupled with restrictions on inmates'
freedom, make it impossible for inmates to freely consent.
Because an inmate cannot consent to sexual conduct with a
correctional staff member, an inmate's "words or overt actions
that might indicate a freely given agreement to have sexual
intercourse or sexual contact" in the outside world are
irrelevant in this instance. See Wis. Stat. § 940.225(4).
Accordingly, the deliberate indifference inquiry must be viewed
through the correct lens of the confinement setting. And
through this lens, conduct that merely foreshadows consensual
sexual contact in other contexts may serve as notice of an
obvious risk of sexual assault in the confinement setting. See
Cash v. Cnty. of Erie, 654 F.3d 324, 337 (2d Cir. 2011) (noting
that because (like Wisconsin) New York state law did not
tolerate any sexual contact between guards and prisoners, jail
officials "were thus obligated to do the same in carrying out
their affirmative duty to protect prisoners from harm.").
¶69 A jury aware of the distinctive nature of sexual abuse
in the correctional setting could, based on Slabey's evidence
and reasonable inferences drawn from that evidence, make three
factual findings: (1) Boigenzahn engaged in inappropriate
behavior with female inmates, based on the corroborated reports
of three different inmates; (2) Boigenzahn's behavior,
particularly with A.D., was not just inappropriate, but sexually
charged; and (3) Boigenzahn had a propensity to lie and conceal
16
No. 2020AP877.jjk
inappropriate behavior unless directly confronted, and sheriff's
department officials knew about this propensity. Based on these
findings, a jury could reasonably conclude that the Sheriff had
notice that Boigenzahn was engaging in a pattern of escalating
and inappropriate behavior toward female inmates——including
physical conduct——that was likely to lead to sexual assault. I
will address each of the potential factual findings in turn.
¶70 First, based on the corroborated reports of three
different inmates, a jury could find that Boigenzahn engaged in
inappropriate behavior with female inmates, some of which was
physical in nature. Two of those inmates warned sheriff's
department officials that the behavior was likely to escalate,
or "cross the line" if it had not already. One of the inmates,
A.D., reported that Boigenzahn "made her uncomfortable," told
her that "he didn't mind" when their hands accidentally touched,
and, according to other inmates, even watched her while she
slept. Additionally, Sheriff's department officials viewed
video surveillance of Boigenzahn which corroborated some of the
inmates' reports.
¶71 Second, a jury could reasonably infer that
Boigenzahn's behavior, particularly with A.D., was not only
inappropriate, but sexually charged. Just because a
municipality labels behaviors as "fraternization" instead of
sexual misconduct does not mean that the majority should defer
to that characterization, or assume that a jury must. As Dunn
County's own sexual misconduct policy acknowledges, sexual
conduct encompasses a "range of behaviors," including, for
17
No. 2020AP877.jjk
example, "conduct of a sexual nature or implication" and
"unreasonable or unnecessary invasion of privacy." A jury could
reasonably conclude that Boigenzahn's physical conduct with A.D.
was "conduct of a sexual implication." A jury could also
reasonably conclude that "obsessing" over an inmate and watching
her sleep is an "unreasonable or unnecessary invasion of
privacy."
¶72 The majority errs when it dismisses Boigenzahn's prior
behaviors and mischaracterizes them as "nonsexual." See
majority op. at ¶¶36, 39. In doing so, the majority incorrectly
draws inferences in Dunn County's favor, rather than Slabey's
favor. See Burbank Grease Servs., LLC v. Sokolowski, 2006 WI
103, ¶40, 294 Wis. 2d 274, 717 N.W.2d 781 (when reviewing a
summary judgment decision, "we draw all reasonable inferences
from the evidence in the light most favorable to the non-moving
party."). Sheriff's department officials viewed surveillance
footage of Boigenzahn quite literally "playing footsie" with
A.D., which even the Oxford English Dictionary recognizes as
"surreptitiously touching a person's foot or ankle with one's
foot . . . as a playful expression of sexual attraction"
(emphasis added). Officials also viewed footage of A.D.
stroking Boigenzahn's chest and shoulder after he beckoned her
over to him. And A.D. reported that Boigenzahn told her that he
"didn't mind" when their hands touched. A jury, viewing
Boigenzahn's behavior in the proper context of the confinement
setting and drawing on their life experiences and common sense,
18
No. 2020AP877.jjk
could reasonably conclude that his actions were sexually
charged.
¶73 Third, a jury could find that Boigenzahn had a
propensity to lie and conceal inappropriate behavior, and that
the sheriff's department officials knew about his dishonesty.
Officials knew that Boigenzahn initially lied about passing
notes between male and female inmates, and only confessed when
told that he would be terminated for being untruthful.
Additionally, Boigenzahn himself admitted to officials that he
"tends not to tell the truth." And finally, officials knew that
Boigenzahn appeared to intentionally stand out of camera view in
the Huber Dorm. A jury could find that the Sheriff knew that he
could not trust Boigenzahn due to his deceptive tendencies, yet
chose to put him back in the female dorm, without the
supervision or monitoring that Boigenzahn clearly needed.
¶74 Taking all of these facts and inferences together, a
jury could find that there was a known or obvious risk that
Boigenzahn's behavior would escalate to sexual assault. The
jury could find that the Sheriff received notice from multiple
female inmates that Boigenzahn's behavior was escalating, had
become physical, and would cross the line from merely
inappropriate to predatory, if it had not already. The jury
could find that this escalating behavior was, at the very least,
"conduct of a sexual implication" that——along with the inmates'
warnings——created notice of an obvious risk that sexual assault
would occur. The jury could find that Boigenzahn had already
lied to sheriff's department officials and attempted to evade
19
No. 2020AP877.jjk
detection for his behaviors——thus, he could not be trusted and
clearly required supervision and monitoring. Taking all these
facts together in the context of the confinement setting, with
its stark power imbalance between guards and female inmates, the
jury could reasonably conclude that Boigenzahn's behavior
created a known or obvious risk that he would sexually assault
an inmate.
2. Deliberate Indifference to the Known or Obvious Risk of
Sexual Assault
¶75 A jury, having found that Boigenzahn's actions created
an obvious risk that sexual assault would occur, could further
find that the Sheriff's decision to put Boigenzahn back on his
normal shift reflected deliberate indifference to that risk.
¶76 In determining that the Sheriff was not deliberately
indifferent, the majority suggests that the Sheriff's chosen
course of action——suspending Boigenzahn for three days——was a
"severe" response to Boigenzahn's behavior, and that the Sheriff
chose it over less severe options. See majority op. at ¶¶36,
38. This does not square with the Sheriff's admission that
"historically fraternization turns into a termination," and that
a short suspension was the "minimum" appropriate disciplinary
action for passing notes. The Sheriff's disciplinary response
was lenient, based on his own admissions, and does not preclude
a finding of deliberate indifference as a matter of law. See
Cash, 654 F.3d 324 (2d Cir. 2011) (upholding a jury finding of
deliberate indifference even though the sheriff's department had
previously suspended a guard for misconduct).
20
No. 2020AP877.jjk
¶77 The majority also concludes that the Sheriff's
decision to send Boigenzahn back to guard the female prisoners
on the night shift was not deliberate indifference in part
because moving Boigenzahn to a different shift with more
supervision "would affect somebody on day shift that would be
bumped off from that shift and forced onto the night shift."
See majority op. at ¶11. But the administrative inconveniences
inherent to protecting constitutional rights in the confinement
setting are no excuse for failing to protect those rights. For
instance, the difficulty in finding the time and staff to train
officers about the constitutional limits on excessive force
before handing those officers firearms would not preclude a
finding of deliberate indifference. See Canton, 489 U.S. at 390
n. 10. Nor would any difficulties, staffing or otherwise, in
enacting "centralized treatment protocols for chronically ill
inmates." See Glisson, 849 F.3d at 382. Replacing one staff
member or changing one staff member's schedule is not
"unworkable," as the majority suggests, see majority op. at ¶39,
but in fact a relatively small undertaking compared to adopting
a new training program or revamping healthcare protocols;
therefore, it is difficult to understand why the inconvenience
of doing either would preclude a jury from finding for Slabey on
the deliberate indifference element of the Monell test. The
Sheriff may have decided to retain Boigenzahn despite his
behavior toward female inmates in part because replacing him
would be inconvenient, and "[Boigenzahn] had been a pretty good
jailer on other notes," but the choice still demonstrated a
21
No. 2020AP877.jjk
deliberate indifference to the "note" that mattered here——the
safety of female inmates.
C. Causation
¶78 Slabey also established enough evidence for a jury to
reasonably find that the Sheriff's course of action caused
Slabey's injury.
¶79 Much of the same evidence that supports Slabey's claim
on the culpability requirement also supports it on the causation
requirement. Specifically, evidence of an obvious risk of
sexual assault can support both a finding of "deliberate
indifference" and "an inference of causation——that the
municipality's indifference led directly to the very consequence
that was so predictable." Bryan Cnty., 520 U.S. at 409-410. If
a jury could reasonably conclude that the risk of sexual assault
was obvious enough that the failure to take action constituted
deliberate indifference, it may take "but a small inferential
step" for a jury to find that the failure to take action caused
the injury. J.K.J., 960 F.3d at 384. Causation, like
culpability, is a fact question for a jury——"finding causation
is not a mechanical exercise like working a math problem and
getting an answer, but instead requires jurors to view evidence
in its totality, draw on their life experiences and common
sense, and then reach reasonable conclusions about the effects
of particular action and inaction" (emphasis in original). Id.
at 384–385. Here, Slabey established enough evidence for a jury
to do so.
22
No. 2020AP877.jjk
¶80 Slabey's evidence "paved multiple roads for the jury
to travel" to find that the Sheriff's actions caused her injury.
See id. at 385. A jury could find that if the Sheriff had
pursued the typical course of action and terminated Boigenzahn
for his violations of the fraternization policy (and arguably,
the sexual misconduct policy, as discussed above), Boigenzahn
would not have had access to sexually assault Slabey or any
other inmate. A jury could alternatively find that if the
Sheriff had instead switched Boigenzahn to a shift that allowed
for more supervision, Boigenzahn would have been prevented from
spending a significant amount of time alone and unmonitored with
female inmates, and thus would have either been dissuaded from
sexually assaulting an inmate for fear of the consequences, or
denied the opportunity to sexually assault an inmate at all. A
jury could also infer that the Sheriff's failure to take any
additional action to protect female inmates both emboldened
Boigenzahn and silenced inmates who now understood that
objecting to his behavior was essentially futile. Since any of
these inferences would be reasonable, a jury could conclude from
Slabey's evidence that the Sheriff's course of action caused the
sexual assault to happen.
¶81 The Sheriff's actions were the "moving force" behind
Slabey's injuries. See Bryan Cnty., 520 U.S. at 400. This is
not a case where a plaintiff is attempting to prove causation
simply by showing that she would not have been sexually
assaulted "but for" the municipality's original decision to hire
the perpetrator. See id. Instead, Slabey established that her
23
No. 2020AP877.jjk
sexual assault was caused by the Sheriff's decision to put a
guard with a known history of inappropriate and arguably sexual
conduct toward female inmates back in a position where he would
be alone and unmonitored with those inmates. The Sheriff's
decision was thus not only a "but for" cause of Slabey's
injuries, but "closely related to the ultimate injury." See
Canton, 489 U.S. at 391. A jury could therefore reasonably find
that Slabey has met the causation requirement.
¶82 Because Slabey established sufficient evidence that a
final policy-maker acted with deliberate indifference to a
serious risk of sexual assault, and in doing so caused her
sexual assault, she has met all three requirements for Monell
liability. Based on the evidence Slabey provided, a jury could
reasonably find that the Sheriff knew that he was essentially
sending a fox back to guard the hen house, and in doing so was
deliberately indifferent to the constitutional rights of Dunn
County inmates. Therefore, Slabey's § 1983 claim against Dunn
County should survive summary judgment.
III. CONCLUSION
¶83 Based on the evidence Slabey provided, a jury could
find that Dunn County Sheriff's Department officials ignored the
clear warning signs that Boigenzahn had already engaged in
inappropriate and escalating behavior with female inmates and
then created the circumstances that allowed Boigenzahn to
sexually assault Slabey. The Sheriff's deliberate course of
action enabled Boigenzahn to escape detection for 45 minutes as
he was working alone, unsupervised, and unmonitored in the Huber
24
No. 2020AP877.jjk
dorm on the night he sexually assaulted Slabey. Slabey provided
sufficient evidence for a jury to reasonably find that the
Sheriff's course of action both demonstrated deliberate
indifference and was the causal "moving force" behind the sexual
assault. Slabey's § 1983 claim against Dunn County should
therefore survive summary judgment.
¶84 When municipalities take inmates into custody, they
assume a responsibility to protect them from sexual assault.
But this responsibility means little if the justice system is
unwilling to hold municipalities accountable when they fail to
protect their inmates. When municipalities are not held to
account, measures like PREA, enacted to eliminate sexual assault
in jails and prisons, are reduced to little more than a
perfunctory policy for correctional staff to sign, then freely
disregard. Dunn County threw a match into the tinderbox when it
sent Boigenzahn back to guard female inmates. The majority's
failure to hold Dunn County accountable is akin to standing idly
by as the fire burns.
¶85 I am authorized to state that Justice ANN WALSH
BRADLEY joins this dissent.
25
No. 2020AP877.jjk
1