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J. K. J. v. Polk County

United States District Court, W.D. Wisconsin

January 20, 2017

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


          WILLIAM M. CONLEY District Judge

         These consolidated cases are set for jury trial, commencing January 30, 2017. In advance of the final pretrial conference, the court rules as follows on the parties' motions in limine.


         I. Plaintiffs' Motions in Limine (‘428 dkt. #137; ‘433 dkt. #138)

         A. MIL No. 1: exclude all testimony prohibited by Federal Rule of Evidence 412

         On its face, this motion will be granted because it simply, and therefore unnecessarily, seeks enforcement of a federal rule of evidence. Because the parties' submissions raise questions as to Rule 412's application to the evidence here, the court will address this motion further. In relevant part, Rule 412 provides:

(a) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct:
(1) evidence offered to prove that a victim engaged in other sexual behavior; or
(2) evidence offered to prove a victim's sexual predisposition.
(b) Exceptions.
(2) Civil Cases. In a civil case, the court may admit evidence offered to prove a victim's sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. The court may admit evidence of a victim's reputation only if the victim has placed it in controversy.

Fed. R. Evid. 412. The rule also sets forth a procedure for determining whether such evidence is admissible. Fed.R.Evid. 412(c) (describing requirement of a motion and hearing).

         In their brief in support of this motion, plaintiffs explain the rule, policy behind its enactment and the procedure defendants are required to file to seek admission of such evidence. Plaintiffs seeks to bar any evidence or argument about their sexual history or alleged sexual disposition, including sexual behavior, past sexual relationships, manner of dress or speech and bodily appearance, lifestyle, tattoos or other markings, and any jobs or professions that defendants would offer to prove alleged sexual predispositions. (Pl.'s Br. (dkt. #138) 5.)[1] In response to the motion, Christensen states that he does not oppose the motion, nor could he on its face. Accordingly, this motion is GRANTED.

         As for Polk County, it represents that it does not intend to offer such evidence, however, it then adds that “depending on plaintiffs' trial testimony, such evidence may become relevant to prove, among other things, the plaintiffs' credibility.” (County's Opp'n (dkt. #182) 2.) Such a broad reservation of possible uses is not consistent with the Rule, especially when the only example given of a justified use is so fraught with problems as “credibility.” Regardless, any evidence of alleged sexual misconduct by a victim will be excluded unless first offered outside the jury's presence and found by the court to fall outside the Rule.

         In obvious anticipation of this approach, the County submits its own motion to admit such evidence under Rule 412(c). (‘428 dkt. #195; ‘433 dkt. #196.) The County contends in its motion -- filed at the time responses to motions in limine were due -- that it may seek to introduce evidence of plaintiff J.K.J. visiting Christensen at the Amery Fire Station on three occasions, as well as her deposition testimony that a sexual interaction during one of those visits was not “unwelcome.” (Id. at ¶ 3.) Because the County's motion was filed late, the court will delay ruling on it pending argument at the final pretrial conference. Accordingly, that motion is RESERVED.

         B. MIL No. 2: take judicial notice of the PREA and congressional findings

         Plaintiffs next ask this court to take judicial notice of the Prison Rape Elimination Act, 42 U.S.C. § 15601 et seq., and the U.S. Department of Justice's PREA National Standards and related commentary, dated June 20, 212 and codified under 28 C.F.R. § 115. In response, the County contends that the congressional findings are “legislative facts, not adjudicative facts, ” and as such do not “relate to the parties, their activities, their properties, their businesses.” (County's Opp'n (dkt. #187) 2-3.) Unfortunately, neither side elaborates as to what specific information is or is not relevant to the issues this jury will be asked to decide. Instead, plaintiffs refer to them generically, and the County reiterates its argument at summary judgment that compliance with the PREA is not compulsory. As a result, the court is unable to assess whether any of part of the PREA's guidelines or related commentary for preventing sexual assaults in the prison context may be material to the jury's consideration of plaintiffs' claims, much less how the information should be presented. Accordingly, this motion is RESERVED pending further discussion with the parties at the final pretrial conference as to what exactly plaintiffs seek to introduce to the jury.

         C. MIL No. 3: find Jail Captain Nargis is a policymaker as it relates to jail operations

         Plaintiffs' third motion in limine is a curious one. Essentially plaintiffs seek a finding of fact on the merits that Nargis was a “policymaker” with respect to all aspects of jail operations. The court already addressed this issue in its summary judgment opinion and order, finding that Nargis was a policymaker with respect to training and adopting of policies relating to the PREA, but declined to find that he was a policymaker with respect to correctional officer supervision. (1/3/17 Opinion & Order (dkt. #160) 22-24.) The court reserved on that issue pending a more complete record as to Deputy Sheriff Moe's role in the supervision of correctional officers. (Id. at 24) The court sees no basis to reconsider these decisions, although to be fair to plaintiffs, their motion was filed before the court issued its decision on summary judgment.

         In the County's response, it regurgitates the arguments made at summary judgment, and notes that the court left the door open for finding Moe a policymaker with respect to supervision of correctional officers. As such, the court will RESERVE on this motion pending factual proffers and argument at the final pretrial conference.

         D. MIL No. 4: admit evidence during the damages phase that Polk County has insurance and preclude evidence or argument that the verdict will create a burden on Polk County's tax base

         In this motion, plaintiffs contend evidence “that Polk County has insurance is relevant to rebut the argument from Polk County that a verdict for the plaintiffs would place a heavy burden on local tax payers.” (Pl.'s Br. (dkt. #138) 14.) In response, Polk County argues that any reference to insurance coverage would violate Federal Rule of Evidence 411. The County also argues that such evidence is immaterial to any issue the jury will be asked to decide during the liability phase. As for damages, the County represents that it “has no intention of making any argument about burdens on local taxpayers.” (County's Opp'n (dkt. #187) 8.) Accordingly, this motion is DENIED. If the County opens the door during the damages phase of this trial by referring to, or even intimating about, the fiscal burden on tax payers, however, plaintiffs may submit evidence of the County's insurance coverage.

         E. MIL No. 5: exclude letter sent from Officer Schaefer to the judge in Christensen's criminal sentencing

         Plaintiffs further seek to exclude a letter dated July 16, 2015, from Steve Schaefer to Judge Harrington. (Bannink Decl., Ex. B (dkt. #143-2).) In his response to plaintiffs' motions in limine, defendant Christensen indicates that he joins in this motion. (Christensen's Opp'n (dkt. #179) 1.)

         In the letter, Schaefer describes himself as a recently retired jail sergeant for the Polk County Sheriff's Department, and among other statements about the criminal case, he urges the judge to sentence Christensen to the maximum sentence. Plaintiffs represent that Judge Harrington was the judge assigned to Christensen's criminal action. Plaintiffs seek to exclude the letter as not relevant under Rule 401, more prejudicial than probative under Rule 403, and inadmissible hearsay under Rule 801, all of which appear to be valid objections.

         In response, the County contends that the letter is highly relevant to the core issue of whether the County had notice of a risk of sexual assault by jail correctional officers. Furthermore, the County argues that the letter does not constitute hearsay because it is not being introduced for the truth of the matter asserted, but rather “as evidence the County was not on notice of widespread sexual misconduct, and that such conduct was not condoned or accepted.” (County's Opp'n (dkt. #187) 9.)

         There are a number of problems with these arguments. First, Schaefer is not a policymaker -- or at least there has been no argument or evidence to that effect -- and therefore his personal knowledge or lack thereof about the risk of sexual assault by jailers is of marginal relevance to the issue in this lawsuit. Second, Schaefer explains in the letter that he was surprised by the allegations in the criminal complaint and how such widespread sexual activity could have remained undetected, the relevance of this information -- unless being introduced for the truth of the matter asserted (that Christensen's conduct was undetected) -- appears limited at best. Third, the letter contains irrelevant and highly prejudicial observations bearing on criminal punishment.

         Nevertheless, in its opposition, the County urges the court to reserve ruling on this motion pending Schaefer's testimony at trial. If anything, the fact that Schaefer will testify at trial further diminishes the need for this letter to be introduced. Accordingly, this motion is GRANTED as to use of this letter at trial except as impeachment or for purposes of refreshing recollection.

         F. MIL No. 6: exclude all testimony or other evidence that J.K.J. had sexual relations with ...

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