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Lemons v. City of Milwaukee

United States District Court, E.D. Wisconsin

July 8, 2016

IEMA D. LEMONS, Plaintiff,
v.
CITY OF MILWAUKEE, EDWARD FLYNN, NANETTE HEGERTY, LADMARALD CATES, and ALVIN HANNAH, Defendants.

          DECISION AND ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT (DOC. 116) AND SETTING HEARING

          C.N. CLEVERT, JR. U.S. DISTRICT JUDGE

         Iema Lemons sues the City of Milwaukee, two of its chiefs of police, former-officer Ladmarald Cates, and Cates's former partner, Officer Alvin Hannah. Lemons's claims stem from Cates's rape of Lemons when responding to Lemons's 9-1-1 call for police assistance. Although the City does not admit for purposes of this case that a rape occurred, Cates was convicted of violating Lemons's civil rights by raping her; he is serving time in federal prison as a result.

         The City defendants[1] move for summary judgment on the claims against them. In response, Lemons has dropped certain claims. However, she maintains claims against Cates and Hannah under the due process clause and the Fourth Amendment, her individual capacity claims against Flynn and Hegerty for insufficient investigation and supervision and discipline of Cates, and a Monell claim against the City. Moreover, Lemons seeks indemnification by the City for Cates's liability.

         Summary judgment is proper if the depositions, documents or electronically stored information, affidavits or declarations, stipulations, admissions, interrogatory answers or other materials show that there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a), (c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial burden of demonstrating it is entitled to summary judgment. Celotex, 477 U.S. at 323. Once this burden is met, the nonmoving party must designate specific facts to support or defend each element of its cause of action, showing that there is a genuine issue for trial. Id. at 322-24. In analyzing whether a question of fact exists, the court construes the evidence in the light most favorable to the party opposing the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

         The mere existence of a factual dispute does not defeat a summary judgment motion; there must be a genuine issue of material fact for the case to survive. Id. at 247-48. "Material" means that the factual dispute must be outcome-determinative under governing law. Contreras v. City of Chicago, 119 F.3d 1286, 1291 (7th Cir. 1997). Failure to support any essential element of a claim renders all other facts immaterial. Celotex, 477 U.S. at 323. To establish that a question of fact is "genuine, " the nonmoving party must present specific and sufficient evidence that, if believed by a jury, would support a verdict in its favor. Fed.R.Civ.P. 56(e); Anderson, 477 U.S. at 249.

         STATEMENT OF FACTS

         A. Preliminary objections

         Civil Local Rule 56(b) regarding summary judgment motions requires the parties to provide stipulations and/or proposed statements of fact and responses. Any proposed statement that is not controverted is taken as true for summary judgment purposes. Civil L.R. 56(b)(4).

         The court notes that Lemons objects to many of the City defendants' proposed statements of fact because they are based on "self-serving" affidavits on subject matter that was explored at deposition. (Doc. 137 at 1.) According to Lemons, depositions are more reliable than affidavits and a party should not be allowed to "patch up" a deposition with a subsequent affidavit. (Id. (citing Russell v. Acme-Evans Co., 51 F.3d 64, 67 (7th Cir. 1995).) However, as stated by the Seventh Circuit more recently, the argument against affidavits as "self-serving" should be exterminated, as almost all affidavits are self-serving (otherwise why would they be submitted at all?). Widmar v. Sun Chem. Corp., 772 F.3d 457, 459-60 & n.1 (7th Cir. 2014) (reminding district courts to rid opinions of language critical of the "self-serving affidavit" and indicating that an affidavit based on personal knowledge and meeting the usual requirements for evidence presented on summary judgment is acceptable) cert. denied, 135 S.Ct. 2892 (2015); Hill v. Tangherlini, 724 F.3d 965, 967 & n.1 (7th Cir. 2013) (overruling cases that suggest a plaintiff may not rely on "self-serving" evidence). An issue with an affidavit post-dating a deposition occurs when the affidavit contradicts the prior deposition testimony. In that case the court disregards the "sham" affidavit unless the earlier testimony was ambiguous, confusing, or the result of a memory lapse. Cook v. O'Neill, 803 F.3d 296, 298 (7th Cir. 2015). That is the point in Russell. See 51 F.3d at 67-68 ("Where deposition and affidavit are in conflict, the affidavit is to be disregarded unless it is demonstrable that the statement in the deposition was mistaken, perhaps because the question was phrased in a confusing manner or because a lapse of memory is in the circumstances a plausible explanation for the discrepancy."). But an affidavit that amplifies rather than contradicts prior deposition testimony is not a sham affidavit and is perfectly acceptable for purposes of summary judgment if it meets the usual requirements. See Cook, 803 F.3d at 298. A party should not be prevented from submitting affidavit evidence just because the opposing party did not cover all of the pertinent facts at deposition, even if the subject matter was explored generally.

         Here, Lemons does not point to specific contradictions between deposition testimony and subsequent affidavits, but to now-rejected language about "self-serving" affidavits and a purported preference for deposition testimony over affidavit evidence. However, because affidavits supplementing or amplifying deposition testimony are acceptable, her objection is overruled.

         The City defendants object to all of Lemons's statements of additional proposed fact (Doc. 140) based on the number submitted. Lemons was granted leave to file 129 factual statements, exceeding the 100 permitted by Civil L.R. 56(b)(2)(B)(ii). However, in light of an apparent misnumbering of paragraphs (duplicating numbers 123 through 126), Lemons filed a total of 133 numbered paragraphs. Moreover, assert the City defendants, many of the paragraphs contain multiple factual statements in one paragraph-paragraphs 22 and 26, for example, set forth at least three separate factual propositions.

         This objection, too, is overruled. The extra four paragraphs appear to have been the result of an error and are not an egregious infraction. And the local rules are enforced at the court's discretion. See Civil L.R. 1. Striking the entire document would be an excessive sanction, and the court, with due regard for the circumstance, will consider rather than strike Lemons's last four findings. As for the multiple factual statements in one paragraph, the local rule, some years ago, limited each numbered paragraph to one factual statement. A subsequent revision removed that limitation. Now, the local rule requires that statements of facts "consist of short numbered paragraphs, " without defining what "short" means. Civil L.R. 56(b)(1)(C)(I), (2)(B)(ii). In this instance, for expedience the court will consider all of Lemons's proposed statements rather than analyze each for whether it should be considered "short." The court sets no rule for the future regarding what length of statement will comport with the local rules.

         Next, the City defendants object to any proposed statements of fact that are supported by the report or declaration of plaintiff's expert, Lou Reiter. They urge the court to disregard such proposed facts because Reiter's assertions are conclusory and bereft of facts to support them. According to the City defendants, an expert must do more than supply a bottom line and must show a process of reasoning on a firm foundation. (See Doc. 163 at 2-3.)

         This argument presents a Daubert[2]-type challenge appropriate for a motion in limine rather than an objection in response to proposed statements of fact. Therefore, the court will not disregard Reiter's evidence as a whole. Moreover, reliance on Reiter's evidence is not required for purposes of this decision. The court comes to the same conclusion whether or not Reiter's offerings are considered.

         To the extent that the City defendants object to citations to newspaper articles that are hearsay, the objection will be considered relating to specific proposed findings and sustained generally.

         B. Facts

         The following are undisputed or taken in the light favorable to Lemons.

         1. Police training, policies, policymakers, and discipline All Milwaukee Police Department (MPD) officers complete an intensive police recruit course at the Milwaukee Fire and Police Training Academy. (Doc. 117, ¶ 11.[3]) Academy staff train officers regarding appropriate on-duty behavior and conducting investigations. (Doc. 117, ¶ 9; Doc. 137, ¶ 9.) After successful completion of recruit training at the academy, officers are assigned to a district police station, where field training officers are assigned to work with the new officers. (Doc. 117, ¶ 12.) New officers receive on-the-job training regarding MPD standard operating procedures (SOPs), policies, and various techniques used by officers. (Doc. 117, ¶ 13.) MPD officers are trained that sexual assault is a crime under Wisconsin law. (Doc. 117, ¶ 21; Doc. 137, ¶ 21.)

         Ladmarald Cates completed the application process for the police-officer position successfully and was appointed as a Milwaukee police officer in November 1997. (Doc. 117, ¶ 8.) Cates attended the MPD academy for six months after he was hired by the MPD, and was taught basic rules and procedures of the law. (Doc. 117, ¶ 157.)

         Arthur Jones was MPD Chief of Police from 1996 until 2003. Nanette Hegerty succeeded Jones as MPD Chief of Police from November 2003 through November 2007. (Doc. 140, ¶ 15.) Edward Flynn was sworn into the office of MPD Chief of Police on January 7, 2008, and holds that position today. (Doc. 140, ¶ 15.) Flynn, as chief, is responsible for the leadership, performance, efficiency, and general good conduct of the MPD. (Doc. 117, ¶ 31.)

         The MPD, through Flynn, has established policies and procedures relating to a code of conduct for its officers and officer discipline, including suspensions. (Doc. 117, ¶¶ 23, 24.) Established polices and SOPs include how to conduct patrol investigations and the expected professional behavior of officers who engage in police work. (Doc. 117, ¶ 19; Doc. 137, ¶ 19.)

         The MPD has never had a specific policy regarding sexual misconduct while on duty. (Doc. 139 Ex. 11 at 58.) The MPD does not have a rule or policy incorporating the term "sexual misconduct" or addressing or singling out sexual misconduct expressly; neither Hegerty nor Flynn enacted such a specific rule. (See Doc. 140, ¶¶ 25, 27; Doc. 163, ¶¶ 25, 27; Doc. 139 Ex. 11 at 58 ("We haven't singled out sexual conduct from any other form of criminal conduct.").) The MPD does have a rule prohibiting "idling and loafing, " aimed to ensure that officers conduct only police business while on duty. Flynn described the rule as "cover[ing] a multiple multitude of sins from the sublime to the ridiculous, from being asleep to theoretically committing a crime." (Doc. 140, ¶ 25; Doc. 163, ¶ 25; Doc. 139 Ex. 11 at 58.) Sexual activity on duty is arguably covered by the no-idling-and-loafing rule. (Doc. 137 ¶ 20.[4]) In addition, MPD has a rule that officers cannot violate any law or statute. (Doc. 140, ¶ 25; Doc. 163, ¶ 24; Doc. 139 Ex. 11 at 56.) An officer's sexual contact with a person in custody or obtaining a sexual act in exchange for a promise of favorable treatment constitutes a felony in Wisconsin. (Doc. 140, ¶ 45.)

         Formal discipline may be imposed to punish MPD-employee behavior or to deter future behavior that violates the SOPs, rules, regulations, or code of conduct. (Doc. 117, ¶ 27.) The types of discipline for an MPD officer include district-level reprimand, official reprimand, suspension without pay, demotion, and termination. (Doc. 117, ¶ 28.)

         At all relevant times, the chief of police was the MPD policymaker regarding the investigation, supervision, and discipline of police officers, including the operations of MPD's Internal Affairs Division (IAD[5]) and the decision whether to impose discipline on an officer. (Doc. 140, ¶ 16; Doc. 163, ¶ 16.[6]) The chief did not have to consult with the Fire and Police Commission before modifying any policy or procedure, whether written or unwritten, regarding how IAD conducted its investigations. (Doc. 140, ¶ 17.)

         IAD includes three divisions: criminal investigative, civil litigation, and administrative investigative. (Doc. 140, ¶ 18; Doc. 163, ¶ 18.[7]) Upon a citizen's complaint against an officer alleging conduct that would be criminal in nature if true, IAD opens a criminal internal investigation, which could lead IAD to refer the case to the district attorney's office for an evaluation, possibly with a recommendation for criminal charges. (Doc. 140, ¶¶ 19, 117; Doc. 163, ¶ 19.)

         In addition to the criminal investigation, IAD conducts an accompanying internal review for rule violations, usually called an administrative investigation or companion internal investigation. (Doc. 140, ¶ 20; Doc. 163, ¶ 20; Doc. 139 Ex. 12 at 43-44.) The standard of proof for administrative investigations is preponderance of the evidence, and a completed administrative investigation would result in a disposition of sustained (allegation is true), not sustained (insufficient evidence to determine if the allegation is true), exonerated (allegation is true but defensible), and unfounded (allegation is false). (Doc. 140, ¶ 21; Doc. 163, ¶ 21; Doc. 139 Ex. 11 at 71.) Under Hegerty, the internal investigation could "be as simple as reviewing all the information in the criminal, and then just calling the officer in and asking him questions where he has no right . . . [against] self-incrimination." (Doc. 139 Ex. 12 at 43-44.) Prior to Flynn's tenure, the MPD had no written policies or procedures regarding standards for conducting internal investigations into allegations of criminal misconduct; "it was more practices." (Doc. 137, ¶ 19; Doc. 139 Ex. 12 at 41.)

         All three chiefs received daily briefings about IAD. (Doc. 140, ¶ 109.) There were hundreds of investigations annually. Generally, the chief of police was notified every time an officer was accused of criminal conduct and was regularly updated about the resulting investigations. The chief was updated regularly on the status of open IAD criminal investigations, the investigation that had been conducted, IAD's findings (whether sustained or unsustained), and IAD's recommendations for discipline, whether IAD referred the case to the district attorney, and how the investigation was resolved. (Doc. 137, ¶ 32; Doc. 139 Ex. 11 at 41-43, Ex. 14 at 101-02, Ex. 16 at 43, 69; Doc. 140, ¶¶ 115, 120; Doc. 163, ¶ 115.) Flynn would be notified of IAD's findings and recommendations before IAD approached the district attorney (DA). (Doc. 140, ¶ 118.) After IAD referred a matter to the DA's office for evaluation, Flynn would be informed of the DA's decision. (Doc. 140, ¶ 119.) Flynn also would learn about the internal investigations. (Doc. 140, ¶ 118.)

         When notified of a new criminal allegation against an officer, the chief would be advised of the officer's prior complaint history. (Doc. 140, ¶ 116; Doc. 163, ¶ 116; Doc. 139 Ex. 14 at 109-11, 134-136, 207.) For instance, when advised of an officer's prior disciplinary history Flynn would receive a "thumbnail sketch" of what had occurred, and if cases involved the same charges Flynn would ask questions about why the prior allegation had not been sustained, what could or could not be proved, and what was affirmatively disproved. (Doc. 140, ¶ 121.)

         During his first year as chief, Flynn would receive an oral report from IAD and have in front of him a "hard card" with a list of prior transgressions and the "charges and specifications, " including a report of conduct alleged, what the investigatory findings were and what violations were determined to have occurred. (Doc. 139 Ex. 11 at 63-64; see Doc. 140, ¶ 122; Doc. 163, ¶ 122.) He used this information in deciding whether to discipline an officer. Flynn has stated that if the DA ruled that probable cause existed but the case was not strong enough for prosecution, he expected a "hard look" at whether the IAD administrative findings made a case for a rule violation. (Doc. 139 Ex. 11 at 92; see Doc. 140, ¶ 124; Doc. 163, ¶ 124.)

         Within the first few months of becoming chief, Flynn met multiple times with Lieutenant Dubis, a high-ranking member of IAD, and discussed various pending discipline cases; Flynn also met with Lieutenant Kurt Leibold. (Doc. 140, ¶ 112.) He learned the strengths and weaknesses of IAD and spoke with senior members of IAD about that department. Flynn made clear that he wanted to know if there were any significant issues in IAD. (Doc.140, ¶ 113.) He had confidence that his IAD commanding officers kept him informed of all serious allegations against MPD officers; there was never an occasion when Flynn discovered that a serious allegation of criminal conduct had been made against an officer and he had not been notified of it. (Doc. 140, ¶ 114.)

         Hegerty made no changes to the way work was done within the IAD. (Doc. 140, ¶ 125'.) During Flynn's tenure he did not take any steps to evaluate the quality or adequacy of IAD investigations into police-officer misconduct. (Doc. 140, ¶ 124'; Doc. 163, ¶ 124'.) Flynn made no changes to the manner in which IAD investigated individual allegations of misconduct. (Doc. 140, ¶ 124'; Doc. 163, ¶ 124'.) Moreover, Hegerty has stated that she did not personally conduct any audits of IAD to make sure that their investigations were thorough. Further, Flynn was not aware of any audits or evaluations of the IAD complaint system conducted by the City. (Doc. 139 Ex. 11 at 120, Ex. 12 at 97.)

         2. Cates's personnel history

         Prior to July 2010 Cates was the subject of various complaints. However, there were no sustained allegations that Cates engaged in sexual activity while on duty. (Doc. 117, ¶ 38; Doc. 137, ¶ 38.) And Cates's semi-annual employee evaluations, prepared by immediate supervisors concerning his job performance while at District 3 indicated no areas of concern; the superiors thought he would have been a good candidate for sergeant. (Doc. 140, ¶ 129; Doc. 163, ¶ 129.)

         a. Officer C

         In 2000, Cates was arrested for domestic violence toward his girlfriend, who was also a police officer (Officer C). Officer C accused Cates of choking her until she almost blacked out, pushing her, and causing a cut lip. (Doc. 140, ¶ 34.) Cates acknowledged to an investigator that he and Officer C had argued, but Cates denied choking or pushing Officer C and causing her to fall. (Doc. 140, ¶ 35; Doc. 163, ¶ 35.) Cates entered a deferred prosecution agreement with the DA requiring anger- management counseling and a "no violent contact order." (Doc. 140, ¶ 36; Doc. 163, ¶ 36.) A domestic violence conviction would have made Cates ineligible to carry a gun, which would have prevented him from continued employment as a police officer. (Doc. 140, ¶ 36; Doc. 163, ¶ 36.) Over a year later, Jones imposed a two-day suspension for the incident with Officer C but did not modify Cates's police powers or discipline Cates for untruthfulness. (Doc. 140, ¶ 37.)

         b. SW

         In April 2005, a highly intoxicated female named SW was arrested and booked into MPD's prisoner processing section (PPS), where Cates was assigned to work at the time. Cates and his sergeant, Eddie Rhone, moved SW into a solitary cell and then into a more isolated cell that was not easily visible, departing from standard practice for male officers moving female prisoners. (Doc. 140, ¶ 41.) Afterward, Cates and Rhone watched SW masturbate in her cell. Later, Cates admitted to watching SW masturbate. (Doc. 140, ¶ 42.)

         As SW was being transferred from PPS, she asked publicly which officer was "talking dirty" to her. (Doc. 140, ¶ 44.) Cates was then observed making a "beeline" to the head jailer's office. (Doc. 140, ¶ 44; Doc. 163, ¶ 44; Doc. 139 Ex. 31 at MPD01879-80.)

         Initially, SW complained that she was sexually assaulted and spoken to in a sexually explicit manner by unknown members of the MPD. (Doc. 139 Ex. 31 at MPD01872; see Doc. 140, ¶ 43.) She later stated that she could not remember if sex actually occurred, but she remembered being touched by an officer who said "Suck my dick and I'll get you out of here." (Doc. 140, ¶ 43.) She identified the officer as a black male, late 20s, 5'6", medium build, light complexion, short hair, with small round glasses and a brown uniform. (Doc. 163, ¶ 43; Doc. 139 Ex. 31 at MPD01872.) Approximately five hours after her arrest, SW's blood-alcohol level was 0.18%. (Doc. 163, ¶ 46; Doc. 139 Ex. 31 at MPD01373-74.) Cates was 5'11", did not wear glasses, and wore a navy blue uniform. (Doc. 163, ¶ 43; Doc. 139 Ex. 30 at 01430.)

         IAD opened a criminal investigation into SW's allegations. (Doc. 140, ¶ 46.) The investigation was closed with a note stating "all solvability exhausted, " and SW's allegations were never referred to the district attorney's office. (Doc. 140, ¶¶ 46, 61.) According to the City defendants, investigators interviewed SW and her sister, mother, and boyfriend; the sergeant in charge; the "female booker"; and the processing officer. In addition, according to the City defendants, the investigators processed the cell where the alleged assault occurred for evidence, reviewed PPS videos, reviewed all MPD reports generated by SW's arrest, and reviewed PPS records regarding duty assignments. (Doc. 163, ¶ 46.) Lemons's expert, Lou Reiter, however, opines that the investigation was minimal and did not include several necessary steps, such as interviewing MPD officers or other witnesses present that night, interviewing the accused officers, or reviewing documentation regarding that night in PPS. (Doc. 140, ¶ 46.)

         An administrative investigation commenced in fall 2005. (Doc. 140, ¶ 47; Doc. 163, ¶ 47.) Two officers told IAD that Cates had a propensity to be nicer to female inmates than to male inmates and that frequently he was observed talking to females in the bullpen for extended periods of time for no professional reason. One officer told an IAD interviewer that she had told Cates to leave female inmates alone and another stated that he believed Cates to be unprofessional in behavior towards women. (Doc. 140, ¶ 47; Doc. 163, ¶ 47; Doc. 139 Ex. 31 at MPD01878, MPD01880.) Two different officers reported that Cates was not wearing his nametag when he was discovered watching SW masturbate. An officer's failure to wear his or her nametag violates MPD rules. (Doc. 140, ¶ 48; Doc. 163, ¶ 48.) During the administrative investigation Cates violated an order to not communicate with anyone about the investigation, as he spoke with another officer who had been interviewed by IAD. (Doc. 140, ¶ 50.)

         Hegerty terminated Rhone for untruthfulness regarding the SW incident. In Hegerty's opinion, untruthfulness is a type of violation that leaves a police officer unable to serve because it adversely affects credibility and ability to testify. (Doc. 140, ¶ 49.)

         Cates received a six-day suspension from Hegerty for mistreatment of a prisoner and a two-day suspension for failure to obey an order of an officer of higher rank (i.e., the order not to talk with others about the investigation). (Doc. 140, ¶ 51.) Also, as a result of the SW investigation, Cates was transferred from PPS and back to regular patrol duty at a district station. (Doc. 163, ¶ 51; Doc. 171, ¶ 25.) Cates understood his punishment to be for "mistreatment of a prisoner, " not sexual misconduct, and the personnel order imposing the suspension contains no sexual-misconduct allegations. (Doc. 140, ¶ 51.) He was not disciplined by Hegerty for removing his nametag or lying about it; that possible infraction was "rolled . . . into" the six-day suspension for mistreatment of a prisoner. (Doc. 140, ¶ 49; Doc. 139 Ex. 12 at 144-45.)

         Lemons's police-practices expert opines that there was sufficient credible evidence of other serious rule violations such that Cates should have been disciplined more severely, for sexually inappropriate behavior, attempting to gain sexual favor by use of police authority, concealing his identity by removing his nametag, and lying to IAD investigators. (Doc. 140, ¶ 53.)

         When asked at deposition about possible discipline if credible evidence showed that an officer told a prisoner "Suck my dick and I'll get you out of here, " Hegerty stated that she would not impose substantial discipline: "It would probably be maybe a day, two days. . . . Because nothing occurred . . . it was just a stupid off-the-cuff remark that an officer made that he shouldn't have." (Doc. 140, ¶ 54; Doc. 163, ¶ 54; Doc. 139 Ex. 12 at 126-27.)

         c. TC

         In March 2007, a woman named TC, after being arrested for retail theft, reported that while she was in the PPS on a previous occasion, Cates had sex with her and told her that if she complied he would get her out of jail. IAD opened a criminal investigation and interviewed TC, who told the investigator that after she was arrested in late February 2006, she was taken to PPS and an officer named Cates took her to an individual cell and had sex with her. (Doc. 163, ¶ 46; Doc. 139 Ex. 38 at MPD02496-98.) TC told the investigator that Cates wore a condom, ejaculated, then kept his condom on when he zipped up his pants. (Doc. 140, ¶ 56; Doc. 163, ¶ 56.)

         Department records revealed that TC was arrested early on Saturday, February 25, 2006, but that Cates did not work that weekend. (Doc. 139 Ex. 38 at MPD02497-98.) When told that Cates did not work that weekend, TC responded: "Well, I don't know when it happened but I know I had sex with him" and that maybe it happened in October 2005. . . . Maybe it happened in October of 2005. I'm not sure." (Doc. 139 Ex. 38 at MPD02498.) However, there was no record of TC being arrested by MPD police in October 2005. (Id.)

         During the interview with IAD, TC at times spoke with a child-like tone and repeatedly scratched the top of her head. SW revealed that her real name was different ("LM" for present purposes), that she had been diagnosed with bipolar disorder, and that she had not taken any medications for her condition since the previous year. (Id. at MPD02497)

         MPD records indicated that Cates worked three dates on which TC was arrested and processed at PPS, but that the only date close in time to February 2006 was January 24, 2006. (Doc. 139 Ex. 38 at MPD02499.) However, on that date TC was booked for a prostitution and probation offense, placed in the female bullpen, and released the next morning. (Id.) Cates admitted to having seen TC while working at PPS, but denied engaging in any sexual activity with her. (Doc. 140, ¶ 57.)

         The IAD investigator concluded that TC probably had mental-health issues, that "[a]ll solvability ha[d] been exhausted, " and that the evidence did not support probable cause to proceed further. The investigator requested closure of the investigation as "SUSPENDED-pending any new or additional information" and a supervisor concurred, with the notation "file pending additional information." (Doc. 140, ¶ 58; Doc. 140, ¶ 58; Doc. 38 at MPD02499.) IAD representatives did not notify the district attorney's office about the allegations of TC. (Doc. 140, ¶ 61.) After the criminal investigation concluded, no additional investigatory work was conducted by the internal or administrative side of IAD. (Doc. 140, ¶ 58; Doc. 163, ¶ 58.)

         Lemons's expert, Reiter, opines that IAD should have interviewed other officers in PPS who worked on the nights that Cates and TC were both present, interviewed other prisoners present that night, determined whether TC made any report to a third party, and investigated whether any physical evidence existed. (Doc. 139 Ex. 17, ¶¶ 75, 79.) Reiter concluded that the decision to not take any of these investigative steps indicated a "striking indifference" to TC's allegations. (Doc. 140, ¶ 63; Doc. 139 Ex. 17, ¶¶ 76, 78.)[8]

         The profile of a vulnerable individual who is easier prey for a sexual predator includes those who are arrested for prostitution, are arrested multiple times, and have mental illness. (See Doc. 140, ¶ 59; Doc. 163, ¶ 59.) Sex with a prisoner constitutes criminal sexual assault. Wis.Stat. § 940.225.

         At deposition, Hegerty stated that she believed the SW and TC allegations ...


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