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J. K. J. v. Polk County

United States District Court, W.D. Wisconsin

February 5, 2018

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


          WILLIAM M. CONLEY District Judge.

         These two cases proceeded to a consolidated jury trial on plaintiffs J.K.J. and M.J.J.'s respective claims that a former Polk County Jailer, defendant Darryl L. Christensen, sexually assaulted them while they were incarcerated in the Polk County Jail and that defendant Polk County acted with deliberate indifference to the serious risk of sexual assault of inmates by jail employees, both in violation of the Eighth Amendment of the United States Constitution. Plaintiffs also asserted state law negligence claims against the County. The jury found in plaintiffs' favor on all claims (‘428 dkt. #246; ‘433 dkt. #247) and awarded each plaintiff $2, 000, 000 in compensatory damages against both defendants, as well as $3, 750, 000 in punitive damages against Christensen (‘428 dkt. #250; ‘433 dkt. #251).

         Before the court are a number of post-trial motions. The County seeks judgment as a matter of law under Federal Rule of Civil Procedure 50(b) with respect to plaintiffs' state law negligence claims on the basis of immunity under Wis.Stat. § 893.80. (‘428 dkt. #245; ‘433 dkt. #246.) In addition, the County and Christensen each filed motions for judgment as a matter of law or, in the alternative, for a new trial under Rule 59 with respect to the jury's findings of liability on plaintiffs' Eighth Amendment claims. (County's Mot. (‘428 dkt. #268; ‘433 dkt. #269); Christensen's Mot. (‘428 dkt. #272; ‘433 dkt. #273).) The court agrees with the County that plaintiffs' negligence claims turn on discretionary duties, for which the County is immune. Since the jury also found the County violated plaintiffs' constitutional rights, entry of judgment against plaintiffs on their negligence claims is largely a Pyrrhic victory. Except for those negligence claims, however, both defendants' motions will be denied in their entirety for the reasons that follow. Finally, at the direction of the court, plaintiffs' counsel submitted their request for attorneys' fees and costs under 42 U.S.C. § 1988, and defendants offered no opposition to the requested amount. Finding plaintiffs' request reasonable and well-documented, the court will award the fees and costs set forth below.


         This court may grant judgment to a non-prevailing party as a matter of law under Fed.R.Civ.P. 50(a) where there is no “legally sufficient evidentiary basis” to uphold the jury's verdict on that issue. In reviewing a Rule 50 motion, the court will “examine the evidence presented, combined with any reasonably drawn inferences, and determine whether the combination sufficiently supports the verdict when viewed in the light most favorable to the non-moving party” -- the plaintiffs. E.E.O.C. v. AutoZone, Inc., 707 F.3d 824, 835 (7th Cir. 2013). Alternatively, although the difference is a nuanced one, the court may grant defendants motion for a new trial under Fed.R.Civ.P. 59(a) “only if the jury's verdict is against the manifest weight of the evidence.” King v. Harrington, 447 F.3d 531, 534 (7th Cir. 2006) (citing ABM Marking, Inc. v. Zanasi Fratelli, S.R.L., 353 F.3d 541, 545 (7th Cir. 2003)). To meet this standard, defendants must demonstrate that no rational jury could have rendered a verdict against them. See King, 447 F.3d at 534 (citing Woodward v. Corr. Med. Servs. of Ill., Inc., 368 F.3d 917, 926 (7th Cir. 2004)). In making this evaluation, the court must again view the evidence in a light most favorable to plaintiffs, leaving issues of credibility and weight of evidence to the jury. King, 447 F.3d at 534. “The court must sustain the verdict where a ‘reasonable basis' exists in the record to support the outcome.” Id. (quoting Kapelanski v. Johnson, 390 F.3d 525, 530 (7th Cir. 2004)).

         I. Defendant Polk County's Motion for Judgment as a Matter of Law on State Law Negligence Claim

         Defendant Polk County contends that it is entitled to immunity on plaintiffs' state law claims of negligent training and supervision. Specifically, the County argues that the conduct underlying these claims was discretionary in nature, falling within the immunity provision of Wisconsin Statute § 893.80(4). That provision provides in pertinent part:

(4) No suit may be brought against any . . . governmental subdivision or any agency thereof for the intentional torts of its officers, officials, agents or employees nor may any suit be brought against such . . . subdivision or agency . . . or against its officers, officials, agents or employees for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions.

Wis. Stat. § 893.80(4).

         Courts have generally construed quasi-judicial and quasi-legislative functions as “activities that involve the exercise of ‘discretion.'” Scot v. Savers Prop. & Cas. Ins. Co., 2003 WI 60, ¶ 16, 262 Wis.2d 127, 663 N.W.2d 715; see also Lodl v. Progressive N. Ins. Co., 2002 WI 71, ¶ 21, 253 Wis.2d 323, 646 N.W.2d 314 (holding generally that Wis.Stat. § 893.80(4) provides immunity for “any act that involves the exercise of discretion and judgment”). In contrast to an act that involves discretion and judgment, a ministerial duty is a duty that is:

absolute, certain and imperative, involving merely the performance of a specific task when the law imposes, prescribes and defines the time, mode and occasion for its performance with such certainty that nothing remains for judgment or discretion.

Lister v. Bd. of Regents of Univ. Wis. Sys., 72 Wis.2d 282, 301, 240 N.W.2d 610, 622 (1976).

         In opposition to defendant's motion, plaintiffs contend that the County is not entitled to immunity because the “known and compelling danger exception applies.” (Pl.'s Opp'n (dkt. #267) 2 (citing Cords v. Anderson, 80 Wis.2d 525, 259 N.W.2d 672 (1977)).)[1] In Cords, the plaintiffs were injured when they fell into a deep gorge while hiking at night on a hazardous portion of a trail in Parfrey's Glen, a state-owned nature preserve. After reviewing the facts involved in plaintiffs' fall and injuries, the court concluded “that the duty to either place warning signs or advise superiors of the conditions is, on the facts here, a duty so clear and so absolute that it falls within the definition of a ministerial duty.” Id. at 542, 249 N.W.2d at 680.

         Critically, in Cords, not only was the danger known and clear, but the required response to that danger was equally certain. As the Wisconsin Supreme Court explained in a case cited by plaintiffs, “[t]o qualify as ministerial, the time, mode, and occasion for performance of the duty must be so certain that discretion is essentially eliminated.” Lodl, 2002 WI 71, at ¶ 40 (emphasis added) (reversing application of known and compelling danger exception after finding decision to control traffic manually was discretionary); see also Voss ex rel. Harrison v. Elkhorn Area Sch. Dist., 2006 WI.App. 234, ¶ 20, 297 Wis.2d 389, 724 N.W.2d 420 (applying known and compelling danger exception where “only option was to put an end to” student exercise of wearing “fatal vision goggles”); Pries v. McMillon, 2010 WI 63, ¶ 34, 326 Wis.2d 37 784 N.W.2d 648 (applying ministerial duty exception to Wis.Stat. § 893.80(4) where the “language in the written instructions . . . has the requisite specificity and definition of the time, mode and occasion for its performance with such certainty that nothing remains for judgment or discretion”).

         In finding a constitutional violation by the County here, the jury necessarily determined that “one or more of [the County's] policy-making officials knew of a substantial risk of harm, and that the official or officials consciously disregarded this risk by failing to take reasonable measures to deal with it.” (Closing Instr. (dkt. #243) 4.) However, the appropriate response to that danger still required the exercise of discretion, thus bringing it within the scope of § 893.80(4) and outside of the boundaries of the known and compelling danger exception. In their opposition brief, plaintiffs contend that the need for different and additional training was clear, but the concept of “different and additional” training, unlike the requirement to train at all -- or to erect warning signs or stop a discrete, dangerous activity or follow explicit instructions -- necessarily required the exercise of discretion. For this reason, the court will grant the County's motion for judgment as a matter of law, finding the County entitled to immunity for plaintiffs' negligence claims under Wis.Stat. § 893.80(4).[2]

         II. Defendants' Motions for Judgment as a Matter of Law on Eighth Amendment Claims

         Defendants filed separate motions for judgment as a matter of law or for a new trial on plaintiffs' Eighth Amendment claims, although their motions raise overlapping arguments. As such, the court will address the motions together, addressing each argument separately.

         A. County's Deliberate Indifference

         In challenging the jury's finding of deliberate indifference, the County first argues that plaintiffs failed to show that it had the requisite knowledge. Specifically, the County argues that plaintiffs failed to offer proof of a pattern of prior constitutional violations. As plaintiffs point out in response, the court agreed with defendants that plaintiffs failed to put forth sufficient evidence to support finding a pattern of constitutional violations known to policy-makers, and as a result, the court both precluded plaintiffs from so arguing and excluded this basis of liability from the jury instructions, leaving plaintiffs to argue only that the “risk of the inadequacy of the training, supervision, and/or adoption of policies [was] plainly obvious.” (Trial Tr. (dkt. #259) 5-9 (final jury instruction conference, explaining change, removing pattern language); Closing Instr. (dkt. #243) 4-5 (describing knowledge of risk component of deliberate indifference claim).)

         Second, in a challenge more rooted in the actual record, the County argues that plaintiffs failed to prove that the substantial risk of harm and the inadequacy of the training, supervision and/or adoption of policies were “plainly obvious.” The jury was instructed that to find deliberate indifference, plaintiffs must prove that a substantial risk of harm from inadequate training, supervisor or policies was plainly obvious to one or more of the County's policy-making officials. (Closing Instr. (dkt. #243) 4-5.) Plaintiffs submitted evidence consistent with that burden at summary judgment and again at trial by showing that Jail Captain Scott Nargis was aware of sexual comments by correctional officers to inmates and other female employees as a result of investigating Christensen as far back as 2002 and investigating another former correctional officer Art Jorgensen in 2012. Plaintiffs argued, and the jury apparently found, this knowledge placed Nargis on notice as to the need for further or different training, as well as for implementation of PREA-like training, notice and supervision policies. Moreover, Nargis generally acknowledged his awareness of “tier talk, ” from which a reasonable jury could conclude that the jail officials turned a blind eye, and perhaps even fostered, a culture where inappropriate sexual comments were accepted as the norm. Finally, the jury heard testimony and received evidence about the Jail's February 2014 PREA training -- the only PREA specific training offered to jail employees -- from which the jury reasonably could conclude that the administration downplayed the importance of preventing sexual assault and harassment within the jail. Although not overwhelming evidence, this circumstantial evidence forms a legally sufficient evidentiary basis for the jury's finding it was more probable than not that Nargis and others within the County Jail administration had knowledge of the substantial risks of sexual assaults of jailers on inmates, but acted with deliberate indifference to the need for better training, supervision and policies.

         Third, the County challenges the jury's finding that its deliberate indifference caused plaintiffs' injuries. Here, too, the court finds that there was a legally sufficient evidence basis to support the jury's finding it more probable than not that if the County had provided adequate notice and training to correctional officers and inmates on what constitutes sexual harassment and abuse, and how to report it, plaintiffs may not have been sexually assaulted and harassed, or at minimum that adequate supervision policies would have prevented Christensen from feeling emboldened enough to repeatedly make lewd comments over the jail intercom about female inmate's attire, much less leave his post in the jail's bubble to assault inmates sexually. Furthermore, the jury reasonably could have concluded that increased or different supervision may have thwarted Christensen's rampant acts of sexual abuse. Indeed, as described by the victims, it seems quite likely that the sheer audacity of Christensen's repeated acts, done with actual power over their daily lives and with apparent impunity, would have overcome any hope that filing a complaint would have produced a positive outcome.

         Fourth and finally, the County complains that the jury verdict “turns Monell into a standard of respondeat superior liability.” (County's Opening Br. (dkt. #269) 23.) To the contrary, the jury instructions on plaintiffs' claims of liability against the County were entirely consistent with the standard under Monell. Because the court finds a legally sufficient evidentiary basis for the jury's findings as to each of the deliberate indifference and Monell elements, the court rejects any suggestion that the jurors applied a less rigorous standard in rendering their verdict.

         B. Christensen's ...

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