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J.K.J. v. Polk County

United States District Court, W.D. Wisconsin

January 3, 2017

J.K.J., Plaintiff,
POLK COUNTY and DARRYL L. CHRISTENSEN, Defendants. and M.J.J., Plaintiff,


          WILLIAM M. CONLEY District Judge.

         Former Polk County Jail correctional officer Darryl L. Christensen sexually assaulted plaintiffs, identified by their initials to protect their privacy, while they were imprisoned at the Polk County Jail. Christensen was convicted of five counts of sexual assault -- these two plaintiffs were not his only victims -- and is currently serving a prison sentence of thirty years. In this lawsuit, plaintiffs allege that Christensen violated their constitutional rights and also assert various claims under state law. Material to this opinion, plaintiffs also allege that Polk County is liable under Monell v. Dep't of Social Servs. of New York, 436 U.S. 658 (1978), for failing to: (1) train and supervise Christensen; and (2) adopt necessary procedures to prevent his sexual assaults. Before the court is the County's motion for summary judgment on plaintiffs' claims for federal Constitutional violations under 42 U.S.C. § 1983, as well as state claims for common law negligence under the court's supplemental jurisdiction. (‘428 dkt. #54; ‘433 dkt. #55.)[1]

         For the reasons that follow, the court concludes that plaintiffs have put forth sufficient evidence from which a reasonable jury could find that the County was deliberately indifferent to the risk of sexual assault by a correctional officer within its Jail. Accordingly, the court will deny the County's motion for summary judgment with respect to the § 1983 claim and plaintiffs' state law claim for negligent training and supervision. The court, however, will grant the motion and enter judgment in the County's favor on plaintiffs' claims of negligent infliction of emotional distress and duty to indemnify co-defendant Christensen, finding that a reasonable jury could not conclude that Christensen acted within the scope of his employment.


         Polk County recently provided plaintiffs with additional documents relating to an investigation into inappropriate sexual conduct by another of its correctional officers, Allen Jorgensen, in early 2012. These documents were produced long after requested, after summary judgment was fully briefed, and after the close of discovery. Moreover, the County provided these documents without any explanation for its failure to produce them earlier.[2] In particular, the County produced for the first time emails Sergeant Steve Schaefer sent to Jail Captain Scott Nargis on January 15, 2012, and attachments to those emails. (Bannink Aff., Exs. F, H (dkt. ##120-6, 120-8).)

         While the County's failure to previously disclose these documents or offer plaintiffs any explanation for its failure to do so is inexcusable, plaintiffs' request to re-open discovery, supplement summary judgment, investigate amending the pleadings and continue the trial date is also overblown. (Pls.' Mot. (dkt. #118).) Other than Sergeant Schaefer's admission in his cover letter that “[w]e all have heard complaints about inappropriate comments to both inmates and staff” (Bannink Aff., Ex. F (dkt. #120-6) 4), the content of his emails and attachments are similar to that previously produced by Captain Nargis in his investigation notes, which were timely produced by defendant. Moreover, those timely-produced documents indicate that: (1) Nargis received three emails from Schaefer prompting the investigation into inmate harassment by Jorgensen; and (2) Officer Kathleen Fjorden had in turn provided documentation to Schaefer. (See Bannink Aff., Ex. D (dkt. #86-18) 3.) Without excusing defendant's failure to produce the Schaefer emails, therefore, plaintiffs could have sought production of the referenced emails and attached documentation before the close of discovery and the deadline for filing an opposition to the County's motion for summary judgment. Even more critical, these new documents neither change significantly (if at all) what plaintiffs knew before opposing summary judgment, nor the substantive evidence proffered to support their claim that the County had notice of sexual misconduct of another officer.

         In addition to these emails, plaintiffs take issue with Jorgensen's resignation letter, which was submitted with the County's reply brief in support of its motion for summary judgment, but not previously produced by the County. (Nargis Decl., Ex. B (dkt. #92-2).) Here, the County's failure to produce this letter is understandable. The letter does not fall into plaintiffs' request for “any and all documentation regarding any allegation and/or investigation, including but not limited to . . . PCJ staff having improper sexual contact with inmates and/or making improper sexual comments to inmates, including but not limited to Alan Jorgensen.” (Pls.' Br. (dkt. #119) 3.) Indeed, much to plaintiffs' chagrin, the letter makes no reference to the allegations against him or any investigation.

         Moreover, the letter was provided on August 16, 2016, before the close of discovery. At that time, plaintiffs could have sought leave to file a sur-reply or open discovery regarding this letter, among other reactions. They took none of those steps, perhaps because this letter also does not materially alter the evidence plaintiffs were provided before their filing an opposition to defendant's motion for summary judgment. Indeed, plaintiffs knew Jorgensen had been issued two letters of reprimand and that he then resigned. In his letter, plaintiffs take issue with Jorgensen's comment that he is “leaving the Sheriff's Dept. on good terms with administration and my co-workers.” (Id. at 2.) The court is hard-pressed to understand how Jorgensen's mischaracterization of the circumstances of his departure is material to their claims that the County had notice of sexual misconduct by another officer and failed to deal with those claims appropriately.

         Rather than grant the extreme relief plaintiffs seek, the court will craft a remedy commensurate with defendant's failure to produce Schaeffer's letters. The court will reopen discovery for the limited purpose of allowing plaintiffs to depose Steve Schaeffer about his role in the Jorgensen investigation, including the content of his emails to Nargis on January 15, 2012. The court will also order the County on or before January 9, 2017, to review its files -- both electronic and physical -- to ensure (again) that it has produced all documents responsive to plaintiffs' requests. On or before January 10, 2017, the County will also be required to file a verification with the court that attests its review is complete and lists any additional documents produced to plaintiffs as a result. Consistent with Rule 26(a)(3)(A)(iii), the court will also preclude the County from offering into evidence any late produced document. Finally, the court will take up plaintiffs' motion for sanctions at the final pretrial conference.


         A. The Parties

         Plaintiff J.K.J is an adult resident of the State of Wisconsin who was incarcerated from time to time from July 2012 to 2014 in Polk County Jail. Like J.K.J., plaintiff M.J.J. is also an adult resident of the State of Wisconsin who was incarcerated from time to time from November 2011 to January 2014 in Polk County Jail.

         Defendant Darryl L. Christensen is an adult resident of the State of Wisconsin, formerly employed as a correctional officer or “jailer” with Polk County. Polk County Sheriff's Department is a law enforcement agency of Polk County.[4] Polk County is a municipal corporation organized under the laws of the State of Wisconsin.

         Captain Scott A. Nargis has been the Polk County Jail Captain since 2000. From April 2008 to November 2010, Nargis also acted as the Jail Administrator. While the parties fail to explain the differences in these two positions, the court infers for purposes of summary judgment that, in either capacity, Nargis was the individual in charge of day-to-day jail administration. Peter Johnson is the current Polk County Sheriff, a position he has held since 2011. Finally, Steven Moe was the Polk County Chief Deputy from 1991 until his retirement in March 2016.

         B. Overview of the Jail

         i. Physical orientation

         The Polk County Jail is located in Balsam Lake, Wisconsin, and houses both convicted prisoners and pretrial detainees. Within the jail, there are two separate housing areas or “pods”: a minimum security area and a maximum security area. The latter, so-called “max pod” also contains a medium security section. Constructed in 2003, cameras were not added to the max pod due to budgetary concerns, the difficulty in storing camera footage, and the fact that the max pod has a central area, referred to as the “bubble, ” where a jailer is stationed all times to supervise inmates in that pod. The bubble is surrounded by a hallway, off of which are various rooms on the ground and lower level, some of which are cells that hold multiple inmates. The various cells within the max pod are segregated by sex.

         The “X-Room” is one of the rooms located off of the hallway, and it is used by inmates for classes, exercising or other jail-sanctioned activities. The X-Room also has a locked bathroom connected directly to it, which is only accessible through that room. The X-Room was only available for inmates for use upon the permission of the jailer on duty.

         There is one-way glass on the outside of the bubble and the various rooms, allowing jailers to see inside cells and other rooms, but limiting the ability of inmates to see into the hallway.[5] The jailer staffed inside the bubble has the ability to remotely open the doors to allow access to the max pod. Unless these doors are left open, a jailer cannot enter the max pod without being let in by someone inside the bubble or by an officer in the master control room.

         ii. Jail administration

         All jailers are under the supervision of Jail Captain Nargis, including Christensen during the course of his employment. From 2011 to 2014, the types of discipline that might be issued to a Polk County Jail employee included a written reprimand, an official reprimand, suspension without pay, demotion and termination. During that same period, Polk County Jail employees were periodically evaluated and reviewed. If a jail supervisor determined an employee violated a policy or procedure, that supervisor evaluated whether the violation warranted any discipline or retraining. The employee would also have been informed of the violation and may have been retrained on the policy or formally disciplined.[6]

         Before becoming sheriff, Sheriff Johnson had no training in jail operations. Since becoming sheriff, his training has been very limited. Moreover, Johnson testified that he does not handle the “minutia” of running a jail, which included training. As Captain, Nargis reported directly to Chief Deputy Moe until Moe retired in March 2016. During that time, Moe testified that Nargis was responsible for training jail staff, though Moe acknowledged that he may have discussed training with Nargis “like in passing in the hall kind of conversations.” (Def.'s Resp. to Pl.'s PFOFs (dkt. #94) ¶ 47 (citing Moe Depo. (dkt. #58) 26)).) Regardless, it is undisputed that Nargis created the training program for all times relevant to plaintiffs' claims here.

         C. Policies and Training Regarding Sexual Contact between Jailers and Inmates

         i. Policies and trainings directed at jailers

         The Polk County Jail had multiple policies, rules and procedures in effect during plaintiffs' incarceration and Christensen's employment. All jailers received a copy of Polk County Jail's Policy and Procedures Manual upon commencing employment. Jailers are expected to read and understand the Manual. Jail Manual Section 21 C-200 provides that male and female officers will supervise and manage all inmates regardless of gender, with the exception of pat down searches and strip searches. Polk County also provides training regarding inmate supervision techniques.

         Section 21 C-202 prohibits jailers from engaging in sexual and/or other inappropriate contact with inmates under the Prisoner Rape Elimination Act (“PREA”). The policy also provides: “In addition to Department policies against sexual misconduct, Wisconsin State Statutes make it a criminal offense for correctional staff members to have sexual intercourse or contact with an individual confined in a correctional institution.” (Nargis Decl., Ex. B (dkt. #55-2) 7.) In addition to this policy, each jailer is required to be certified as a correction officer by the State of Wisconsin Department of Justice Law Enforcement Standard Board, which, in part requires training that sexual contact with inmates is unprofessional and violates the Wisconsin Statutes.

         Despite the existence of Section 21 C-202 and other training, plaintiffs contend that Polk County failed to provide adequate training on the PREA and adopt recommended practices. Inspector Brad Hompe, a detention facility specialist with the Wisconsin Department of Corrections, provided resources to jails, including posters and a PowerPoint training on the PREA.[7] Hompe told jails not to ignore the PREA. Because PREA is a federal statute, however, the DOC had no means of enforcing compliance; instead, compliance is voluntary. Still, the DOC has sent several emails on the PREA to jail administrators since its enactment.

         Nargis testified at his deposition that he does not recall being provided PREA materials in writing from Hompe, does not recall taking notes from any conversations with Hompe, and does not have any documents that would show the basic requirements of the PREA. Polk County also never took Hompe up on his offer to provide training, nor did the County consult with a PREA consultant.

         Sheriff Johnson was generally aware of the PREA, but testified at his deposition that he did not “come anywhere to be[ing] an expert.” (Johnson Depo. (dkt. #52) 17.) He knew generally that “any contact between guards and inmates, inmates and inmates, any of that has to be reported and acted on, investigated as soon as possible.” (Id.) Johnson further testified that he did not think Polk County could reach full compliance with the law because of fiscal concerns. Johnson testified that the PREA requires a compliance officer, and he assumed that Nargis fills that role. Since Christensen's assaults came to light, Johnson has told Nargis that “we need to get as much as possible in compliance.” (Id. at 20.) Johnson testified that, while he was not familiar with PREA policies, he assumed that the policies were in place. As for information the PREA recommends jails provide to inmates, Johnson also testified that he does not know what is recommended, but assumes Nargis would know and that those policies are also in place. Chief Deputy Moe similarly testified that he did not have any specific training on the PREA and does not know anything about it beyond its general purpose.

         After the allegations regarding Christensen came to light, Nargis and Johnson met with Kristi Dietz from the Head of the Office of Detention Facilities, although the County contends that this meeting “was not prompted by or specifically in relation to the incidents” involving Christensen. (Def.'s Resp. to Pls.' PFOFs (dkt. #94) ¶ 145.) Dietz provided Polk County with copies of posters to put up in the jail to notify inmates of the protections of the PREA. Nargis, however, made the decision not to put the posters up because of his concern that inmates would attempt to tunnel out behind the posters or hide contraband.[8] Nargis also testified that he did not provide copies of the PREA information to inmates because it was already provided in the inmate handbook. For his part, Sheriff Johnson testified that he would “probably be disappointed” if the posters were not displayed because they are a cost-effective means of educating inmates. (Johnson Depo. (dkt. #52) 28.)

         Other than training on the jail policies described above, the only PREA specific training available for jail employees, including Christensen, occurred on February 20, 2014. At his deposition, Nargis testified that he did not recall the details of the training, including the length of it, other than he told staff what the “PREA was, what it means for us and what the prohibitions are.” (Nargis Depo. (dkt. #48) 42.) The training also addressed Taser recertification, and the sign-in sheet for the day only mentioned “Taser Re-Cert.”

         Nargis followed up the next day with an email that contained the following bullet-points:

o Seems to be that everyone is in a tizzy to train their staff on PREA. There is no requirement for us to be compliant with everything that the law calls for, but nevertheless it is federal ...

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