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J.K.J. v. Polk County

United States District Court, W.D. Wisconsin

January 31, 2017

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

          ORDER

          WILLIAM M. CONLEY District Judge

         The purpose of this order is to address the parties' objections to the court's proposed jury instructions.

         I. Plaintiffs' Request for Instruction on Failure to Protect

         In their original submission on jury instructions, plaintiffs proposed an instruction on failure to protect. (Pis.' Proposed Jury Instructions (dkt. #134) 29.) The court declined to do so because there appeared to be no failure to protect claim at play in this case. Even assuming plaintiffs pleaded such a claim, or that this court were to grant plaintiffs leave to amend at this late date, plaintiffs have failed to explain how a failure to protect claim fits within the rubric for demonstrating municipality liability. Like other § 1983 claims, a failure to protect claim is premised on personal involvement. See, e.g., Conway v. Gamble, No. 00-C-383-C, 2000 WL 34236735, at *2 (W.D. Wis. Oct. 26, 2000) (requiring personal involvement to state a failure to protect claim).

         Typically, such a claim involves either a supervisor failing to protect a plaintiff from the actions of another official, see, e.g., Locke v. Haessig, 788 F.3d 662, 667 (7th Cir. 2015), or an officer failing to protect a plaintiff from a violent fellow inmate, see, e.g., Brown v. Budz, 398 F.3d 904, 909 (7th Cir. 2005). Here, however, plaintiffs' claims against the County necessarily involve demonstrating an unconstitutional policy, practice or custom that caused their injuries. And, as previously explained, deliberate indifference can constitute a "custom." There is no separate failure to protect claim independent of plaintiffs' constitutional claim asserted against the County itself. Moreover, the expansive instruction covers failures on the part of the County in training, supervising and adopting appropriate policies under Monell. Plaintiffs have failed to explain what additional, specific duties a failure to protect claim would cover, nor is this court willing to allow some more amorphous, general duty to be the basis for plaintiffs' recovery under Monell. Accordingly, the court overrules this objection to the court's proposed instruction.

         II. Deliberate Indifference Instructions

         Plaintiffs also request a change to the instruction regarding the constitutional claim asserted against Darryl Christensen. Specifically, they ask the court to add the following italicized language to a phrase from its deliberate indifference instruction: "that he actually knew of a substantial risk of harm and that he consciously disregarded this risk by engaging in sexual contact with the inmates." (Pis.' Proposed Changes (dkt. #235) 1 (emphasis added).) While the court understands plaintiffs concern that the pattern instruction they seek to replace with the italicized language (by "failing to take reasonable measures to deal with it") focuses on a failure to take reasonable measures, whereas their claim involves Christensen's affirmative actions, the court finds that plaintiffs' proposed language assumes that the sexual contact posed a substantial risk of harm to plaintiffs, which however compelling that assumption may be, remains under current law a question for the jury. As such, the court will modify the instruction as follows: "that he actually knew of a substantial risk of harm and that he consciously disregarded this risk through his actions." As for the instruction for the constitutional claim asserted against the County, the court's proposed deliberate indifference instruction stated in pertinent part that "one or more of its policy-making officials actually knew or should have known of a substantial risk of harm." The County objects to the italicized portion (added only for purposes of this order), directing the court to case law holding that "should have known" is not sufficient to state a claim for deliberate indifference. (County's Obj. (dkt. #233) 2.) While the court credits the County's objection, the language -- used for a straight-up deliberate indifference Eighth Amendment claim and not specific to a Monell claim -- does not take into account that the notice element of a Monell claim includes constructive notice, not just actual notice. See Cornfield by Lewis v. Consol. High Sch. Dist. No. 230, 991 F.2d 1316, 1327 (7th Cir. 1993) ("Taken together, these two considerations amount to a requirement that liability be based on a finding that the policymakers have actual or constructive notice that a particular omission that is likely to result in constitutional violations." (emphasis added)).[1]

         The pattern instruction itself does include a second element of a failure to train claim asserted against a municipality that contemplates a "risk that was obvious to the policymaker:"

2. [Official/Policymaker/Policymaking Body] knew that more [and/or different] training was needed to avoid likely [describe alleged constitutional violation(s)], or that this was obvious to [Official/Policymaker/Policymaking Body];

7th Cir. Pattern Jury Instructions § 7.21 (2005 rev.). As such, the court will modify the closing instruction, consistent with the pattern instruction, to read:

2) Policy-making official or officials were deliberately indifferent to the need for more or different training, supervision and/or adoption of policies to avoid likely sexual assault of an inmate by an officer, or that this was obvious to Policy-making official or officials; and

         III. Instruction on Consent

         Finally, in the opening statements and through the presentation of evidence, the parties dispute whether some or all of Christensen's sexual contact with plaintiffs was consensual. Based on this, the court believes that an instruction on consent would assist the jury in deciding the ultimate liability questions. As such, the court proposes the following instruction:

         You have heard evidence and argument relevant to the question of whether defendant Darryl Christensen sexual contacts with plaintiffs were consensual. While none of the elements of the claims described above expressly require you to consider whether these sexual acts (or some of the sexual acts) were consensual or nonconsensual, you may deem such a determination relevant to considering whether plaintiffs were harmed by the sexual contacts. As you have heard, Wisconsin criminalizes sexual contact between a jail employee ...


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