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Doe v. County of Milwaukee

United States District Court, E.D. Wisconsin

December 1, 2016

JANE DOE, Plaintiff,


          J.P. Stadtmueller U.S. District Judge

         1. INTRODUCTION

         On August 31, 2016, the defendants David A. Clarke, Jr. (“Clarke”) and the County of Milwaukee (the “County”) (collectively, “Defendants”[1]), and the intervenor Wisconsin County Mutual Insurance Corporation (“WCMIC”), filed separate motions for summary judgment. (Defendants' Motion, Docket #132; WCMIC's Motion, Docket #129). Each motion was accompanied by a statement of facts, brief in support, and for Defendants, a number of affidavits and exhibits. See (WCMIC's Statement of Facts, Docket #130; WCMIC's Brief in Support, Docket #131; Defendants' Brief in Support, Docket #133; Defendants' Statement of Facts, Docket #134, Affidavits in Support of Defendants' Motion, Docket #135 and #136). On October 21, 2016, the plaintiff Jane Doe (“Doe”) offered her responses in opposition to each motion, responses to each statement of facts, her own unified statement of facts, and an affidavit of counsel attaching exhibits. See (Affidavit of Doe's Counsel, Docket #145; Doe's Statement of Facts, Docket #146; Brief in Opposition to Defendants' Motion, Docket #147; Response to Defendants' Statement of Facts, Docket #148; Brief in Opposition to WCMIC's Motion, Docket #149; Response to WCMIC's Statement of Facts, Docket #150). On November 4 and November 7, 2016, respectively, WCMIC and Defendants submitted replies in support of their motions and responses to Doe's statement of facts. See (WCMIC's Reply, Docket #153; WCMIC's Response to Doe's Statement of Facts, Docket #152; Defendants' Reply, Docket #156; Defendants' Response to Doe's Statement of Facts, Docket #154). The motions are fully briefed and, for the reasons explained below, they will be granted in part and denied in part. As they deal with interrelated issues, the Court addresses both motions in this Order.


         Federal Rule of Civil Procedure 56 provides that the court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016). A fact is “material” if it “might affect the outcome of the suit” under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. The court construes all facts and reasonable inferences in the light most favorable to the non-movant. Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 360 (7th Cir. 2016). The court must not weigh the evidence presented or determine credibility of witnesses; the Seventh Circuit instructs that “we leave those tasks to factfinders.” Berry v. Chicago Transit Auth., 618 F.3d 688, 691 (7th Cir. 2010). The party opposing summary judgment “need not match the movant witness for witness, nor persuade the court that [her] case is convincing, [she] need only come forward with appropriate evidence demonstrating that there is a pending dispute of material fact.” Waldridge v. American Hoechst Corp., 24 F.3d 918, 921 (7th Cir. 1994).

         3. RELEVANT FACTS

         The following facts are gleaned from the parties' collective factual briefing. They have been construed, as required by the standard of review, in a light most favorable to Doe. The Court will provide a timeline of the underyling events and then a discussion of other relevant topics. To the extent the parties dispute any material facts, the Court addresses the disputes as necessary.[2]

         3.1 Thicklen's Sexual Assaults on Doe in 2013[3]

         In February 2013, Doe was detained at the Milwaukee County Jail (the “Jail”). The Jail houses up to 960 inmates at any time, and approximately 35, 000 inmates are booked into the Jail each year. Thicklen was a correctional officer at the Jail during Doe's stay, one of as many as sixty-five on duty at any particular time. Throughout these events, he always wore his uniform while on duty and carried a taser, as required by Jail policy. Doe first met Thicken in April, when he was on-duty as a “clinic transport officer.” He used this position to move Doe from her normal cell to the Jail clinic. Once in a clinic holding cell, he sexually assaulted Doe by putting his hands down her pants, and later ordered her to show him her breasts.

         In July, Thicklen again used his authority, this time as a “floor control officer, ” to take Doe to an attorney booth and assaulted her by forcing her to have anal intercourse. A nearly identical assault occurred in September, save that this time, Thicklen forced vaginal intercourse with Doe. When Doe opposed Thicklen's advances, he said “[t]hese are my co-workers. They're going to believe me, not you. I'm in gray, you're in blue.” (Docket #154 at ¶ 5).

         The next assault was committed in October. Thicklen was working in the infirmary, known as the “Special Medical Unit” (“SMU”).[4] Doe had given birth a few days before, and was therefore housed in the SMU to recover. Thicklen entered Doe's SMU cell and forced her to perform oral sex.

         The final assault occurred in November. Thicklen was again a “clinic transport officer, ” and like the first incident, he moved Doe to the Jail clinic and assaulted her. Thicklen compelled Doe to have oral and anal intercourse. This time, Thicklen moved Doe by removing her “tier card” (an item used in the Jail to monitor inmate movement) without authorization.

         Doe filed a grievance about Thicklen's assaults on December 3. This was the first time she told any Jail officials about her sexual encounters with Thicklen. An investigator from the Sheriff's Office's Criminal Investigations Division, Detective Desotell (“Desotell”), interviewed Thicklen later that day. Thicklen, without being told why he was being questioned, stated that Doe was trying to “kill his life” and that he was worried about “spend[ing] his life in jail.” (Docket #154 at ¶ 11). Desotell then interviewed Doe, also on December 3. Desotell continued his investigation by interviewing other witnesses, including re-interviewing Thicklen and Doe at a later time, and reviewing Thicklen's time cards and assignments, Doe's attorney visit and clinic appointments, and video from Jail cameras. He concluded that Thicklen did commit the assaults as Doe had alleged. Specifically, Desotell found that Thicklen had created a fake clinic appointment to move Doe for the November assault, and had contrived an attorney visit for the July assault.

         On December 5, the investigation was referred to the Sheriff's Office's Internal Affairs division. On December 6, Thicklen hired a criminal defense attorney. On December 9, Thicklen was suspended without pay, and later that day, he resigned from his position with the Jail. Based on his investigation, Desotell issued a “probable cause statement” on January 8, 2014, presumably to support criminal charges against Thicklen.

         Thicklen was arrested on January 7. On January 17, the Milwaukee County District Attorney charged Thicklen with five counts of sexual assault.

         Thicklen pled guilty to the lesser charge of misconduct while in public office, while continuing to deny that the assaults ever occurred. Paul Tiffin (“Tiffin”), the prosecutor assigned to Doe's case, stated that he agreed to enter into a plea agreement with Thicklen to ensure that he was convicted, and thus unable to continue working as a correctional officer and to assault other female inmates.

         3.2 Past Sexual Assaults in the Jail

         On March 7, 2009, correctional officer James Howard (“Howard”) sexually assaulted two female inmates in the Jail.[5] To assault the first inmate, Shanika Thomas (“Thomas”), Howard moved her to an area beyond the scope of the Jail's video surveillance.[6] Howard spent time alone with the second victim, Marletha Rankins (“Rankins”), in her cell, where two assaults occurred.[7] Clarke recommended that Howard be discharged on March 12, 2009, and Howard resigned on March 31, 2009. On September 17, 2010, Howard was found guilty of sexual assault and sentenced to four and a half years in prison.

         Rankins sued Howard and the County (Clarke was also a named defendant), alleging that the County failed to appropriately supervise male correctional officers' interactions with female inmates. Specifically, she contended that the County did not have a policy requiring appropriate video or other electronic means of surveillance for monitoring officer activity.[8] Thicklen is Howard's brother-in-law and was aware that Howard was convicted, and imprisoned, because he sexually assaulted a Jail inmate.

         Aside from Thicklen's conduct, and including the three Howard assaults, there were a total of ten alleged incidents of sexual misconduct in the Jail from 2008 to 2013.[9] Among those, the Sheriff's Office investigations found that four incidents were substantiated, while the others were not. The Court groups them below.

         3.2.1 Substantiated

         The Howard assaults comprise three of the four substantiated instances of sexual misconduct. The other assault occurred in October 2010. The Sheriff's Office found a letter suggesting a sexual relationship between officer “D.W.” and an inmate. The investigation involved interviews, reviewing recorded phone calls, and reviewing photographs D.W. sent to the inmate. The investigation concluded that D.W. probably engaged in sexual acts with the inmate. However, the inmate denied having sex with D.W. and the District Attorney declined to bring charges against him. Nevertheless, Internal Affairs opened its own investigation, and Clarke filed charges against D.W. with the Personnel Review Board seeking his discharge. D.W. resigned before the charges could be heard by the Board.

         3.2.2 Unsubstantiated

         In June 2012, an inmate complained of a sexual relationship between a female officer “L.J.” and another female inmate. The investigation found no evidence to support the allegations. In February 2013, a male inmate alleged that a male officer “R.S.” inappropriately touched him during a “shakedown.” This complaint was determined to be unfounded. In June 2013, an inmate complained that an unnamed officer grabbed his testicles while the inmate was being moved in the Jail. The investigation was closed because the complaining inmate refused to cooperate. In December 2013, officer “Q.W.” allegedly grabbed an inmate's penis and buttocks during a search. The investigators reviewed video of the search, finding that Q.W. had followed standard search procedure. Also in December 2013, an inmate alleged that officer “N.S.” slapped his buttocks, but due to the inmate's inconsistent statements and the lack of corroborating witnesses, the investigation was closed. Finally, in January 2013, an inmate complained that an unidentified officer had sexually assaulted her in April 2012. The inmate could not recall anything specific about the incident because she had “blacked out, ” and no other supporting evidence was found, so the complaint was closed.

         3.3 Policies and Training Regarding Sexual Assault

         Clarke, the Milwaukee County Sheriff, had final responsibility for Jail policies and procedures at all times relevant. The Milwaukee Sheriff's Office Detention Services Bureau (the “Bureau”), however, actually operates the Jail and sets its policies. Jail employees are required to read and follow the Bureau's policies. At issue here is the Staff Sexual Conduct Policy (“AM 7"), which prohibits “any form of sexual misconduct by staff with [inmates].” (Docket #148 at ¶ 13). AM 7's purpose is to ensure that Wisconsin law proscribing sex between correctional officers and inmates “is strictly enforced.” Id. at ¶ 11. It is further described as a zero-tolerance policy. AM 7 defines sexual misconduct to include sexual contact, intercourse, and assault, as well as verbal sexual misconduct, and provides examples of physical sexual misconduct. The Sheriff's Office maintains a system to track sexual misconduct charges against correctional officers. Violations of AM 7 are investigated by multiple Sheriff's Office departments and can potentially result in referral to the Milwaukee County District Attorney or internal discipline. The County's “Rules” policy informs all employees, including correctional officers, that they may be subject to discharge, suspension, or demotion for violating a County policy or criminal law.

         All Jail officers are trained at the Sheriff's Office Training Academy. Their training addresses sexual assault specifically, defining what is prohibited by Wisconsin law, teaching officers to avoid sexual misconduct, and training them on minimizing fraternization with inmates. Officers are further instructed that sexual misconduct with an inmate is a specifically enumerated Class C felony in Wisconsin. That statute provides:

(2) Second degree sexual assault. Whoever does any of the following is guilty of a Class C felony:
. . .
(h) Has sexual contact or sexual intercourse with an individual who is confined in a correctional institution if the actor is a correctional staff member.
. . .
(4) Consent. “Consent”, as used in this section, means words or overt actions by a person who is competent to give informed consent indicating a freely given agreement to have sexual intercourse or sexual contact. Consent is not an issue in alleged violations of sub. (2). . . (h)[.]

Wis. Stat. § 940.225(2)(h) and (4). The statute further defines “sexual contact” and “sexual intercourse” and those definitions are provided in the officers' training materials. The materials go on to summarize the rule:

The lesson of this statute is very clear: Do not have any sexual contact or sexual intercourse with inmates under any circumstances, whether or not they consent to such contact or intercourse. Such conduct is clearly grounds for you to be charged criminally. It is also totally unethical and unprofessional conduct. There is no excuse or justification for such conduct, under any circumstances.

(Docket #136-4 at 46) (emphasis in original). The officers' training manual then provides examples of prohibited behavior which may go beyond the purview of the statute, to include sexual discussions, comments, inappropriate non-intercourse touching, and hugging or kissing.

         Thicklen was trained in accordance with these rules. He was hired as a Jail officer on November 5, 2012.[10] Prior to his hiring, Thicklen was subject to a background check regarding, inter alia, his criminal and employment history. That investigation did not reveal a criminal record or other indication of a concern for sexual misconduct. Thicklen completed the Jail officer training program on December 13, 2012. This included training on sexual assault, fraternization with inmates, and sexual misconduct. Thicklen admitted that he received this training and specifically that he was told it was a crime to have sex with an inmate. Thicklen further admitted that he received the County's policy handbook, which included AM 7.

         3.4 Thicklen's Duties and Authority in Relevant Roles

         In certain roles, correctional officers are required to escort inmates around the Jail as part of their duties. “Clinic officers” take inmates to and from the Jail's clinic. There is only one clinic officer on duty per shift. That officer obtains a list of inmates with clinic appointments, retrieves the listed inmates, takes them to the clinic, and places them in a clinic cell. As noted above, this was Thicklen's job during the April and November assaults.

         Similarly, for attorney visits, a “floor control officer” informs the pod officer that an inmate has a visit, opens the housing pod doors so that the inmate can exit, and escorts the inmate to the hallway where the visit rooms are located. In this role, an officer controls the housing pod doors and access to the attorney visit rooms. The sixth floor of the Jail, where Thicklen was assigned to “floor control, ” also housed other female inmates besides Doe. For the July and September assaults, Thicklen was acting as a “floor control” officer.

         Thicklen's other relevant role was as an SMU officer, the job he held during the October assault. SMU officers are charged with checking in on inmates, and they control what happens in the SMU, subject to oversight by supervisory officers. Male officers in the SMU are permitted to check on female inmates and enter their cells. SMU officers also distribute food, clothes, hygiene products, and mail. They have the power to discipline inmates in an effort to maintain order, and also assist inmates in filing grievances. When an inmate leaves the SMU, the SMU officer consults with the classification officers, who will determine where the inmate is housed going forward.[11] As an SMU officer, Thicklen checked in on Doe, asked her for sex, was refused, and then forced himself on her.

         All correctional officers may request that an inmate be disciplined by being “placed in red.” This means that the inmate will be given a red uniform and placed in segregated housing. If an inmate is “in red” for disciplinary reasons, she may be given a punitive diet call “nutraloaf.” Doe feared that if she resisted Thicklen's advances, Thicklen would punish her by putting her “in red.”

         The Court makes an additional observation relevant to these facts. In answering requests for admission, Defendants have denied that certain of Thicklen's activities were within the scope of his employment because they depend on his intent, namely whether the act in question was sexually motivated or not. This requires that one believe Doe's account because, as noted above, Thicklen denies the assaults occurred. This is also true for Defendants' interrogatory responses, which similarly state that Thicklen's conduct was outside the scope if it happened as Doe contends.[12]

         3.5 ...

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