United States District Court, W.D. Wisconsin
WILLIAM M. CONLEY District Judge
purpose of this order is to address the parties'
objections to the court's proposed jury instructions.
Plaintiffs' Request for Instruction on Failure to
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).
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.
Deliberate Indifference Instructions
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
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
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
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
Instruction on Consent
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
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