Martin v. Milwaukee Cnty.
| Decision Date | 14 September 2018 |
| Docket Number | Nos. 17-3216 & 18-1060,s. 17-3216 & 18-1060 |
| Citation | 904 F.3d 544 |
| Parties | Shonda MARTIN, Plaintiff-Appellee, v. MILWAUKEE COUNTY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Russell R. Ainsworth, Attorney, Theresa Kleinhaus, Attorney, Samuel D. Heppell, Attorney, LOEVY & LOEVY, Chicago, IL, for Plaintiff-Appellee.
Charles H. Bohl, Attorney, HUSCH BLACKWELL LLP, Milwaukee, WI, Kurt M. Simatic, Attorney, HUSCH BLACKWELL LLP, Waukesha, WI, for Defendant-Appellant.
Before Manion and Barrett, Circuit Judges, and Gettleman, District Judge.*
Milwaukee County ("County") hired Xavier Thicklen in late 2012 to work as a corrections officer in its jail. County has a zero-tolerance policy forbidding corrections officers from having any sexual contact with inmates. County repeatedly instructed Thicklen not to engage in any such contact and trained him to avoid it. Thicklen gave answers to quizzes indicating he understood the training. But he raped Shonda Martin in jail anyway.
Martin sued him, and sued County for indemnification under Wisconsin Statute § 895.46. Before, during, and after trial, County sought judgment as a matter of law that the assaults were outside the scope of employment and not susceptible to statutory indemnification. But the district court allowed a jury to decide the scope issue and allowed the $6,700,000 award to stand against County via the jury’s finding that the assaults were in the scope. County appeals.
Thicklen worked as a corrections officer (a/k/a "guard") at the Milwaukee County Jail. County instructed him never to have sex with inmates under any circumstances. County told him an inmate’s apparent consent was irrelevant; inmate consent is impossible given the power imbalance. Milwaukee County Deputy Inspector James Cox testified corrections officers are instructed that: 1) sexual contact with an inmate violates state law; 2) there is no such thing as a consensual relationship between an officer and an inmate; 3) the Sheriff’s Office mission opposes officers having sexual contact with inmates; and 4) the Sheriff’s Office will investigate violations and prosecute and terminate violators.
Deputy Anne Varick, who worked as a guard at the jail before Thicklen sexually assaulted Martin, testified inmates had to obey guards or face discipline, but no part of her duties allowed her to have any sexual contact with an inmate or to fabricate reasons to move an inmate. She testified no part of her training permitted sex as a response to an inmate, or the use of force as a means to obtain sex from an inmate.
Edward Bailey, a County representative in supervisory ranks before retiring, told the jury sexual contact between a corrections officer and an inmate is a heinous crime and an abdication of law enforcement’s powers. He testified corrections officers received clear training against it. He testified about training guides Thicklen would have received and explained they detailed the criminality of staff having sexual contact with inmates and the irrelevancy of apparent consent. Corrections officers were trained not to have any sexual contact with inmates under any circumstances, regardless of consent. They were trained such contact is criminal, unethical, unprofessional, unexcusable, and unjustifiable. Bailey testified County has a zero-tolerance policy regarding such sexual contact. He also testified he would meet with all corrections officers on their graduation days and present real-life examples of officers who engaged in unethical and criminal conduct, including sexual contact. Bailey testified he would have had this conversation with Thicklen. Bailey also testified Thicklen’s quiz answers demonstrated his understanding that 1) consent is not a defense to sexual misconduct; 2) if an inmate "comes on" to an officer he should tell the inmate the behavior is inappropriate, discipline the inmate, and report the incident to a supervisor; and 3) if a staff member becomes romantically involved with an inmate he should tell a supervisor of the problem and the need for assistance. Bailey testified Thicklen completed the training about sex. At trial, Martin did not contest Thicklen received this training or gave these answers.
Bailey told the jury the sexual assaults violated Wisconsin law; Thicklen’s oath and training; the Sheriff’s Office’s goals and policies; and County’s rules, regulations, and policies. Bailey’s testimony was blunt: Thicklen Bailey said Thicklen was not rendering services County hired him to perform when he committed these crimes.
Martin arrived at the jail in February 2013 at the age of 19. She soon learned she was pregnant. She testified she could not control her activities or movements in jail; the guards did. Thicklen raped Martin in jail. He had sexual contact with her three times while she was pregnant, including vaginal intercourse, and two times after delivery. Regarding the first sexual assault, Martin testified that on April 12, 2013, Thicklen came to her housing pod and said she had a medical appointment. By then, County had employed Thicklen for approximately six months. He took her and three other female inmates to the jail clinic. He put her alone in a cell near the clinic and put the other three together in an adjacent cell. He returned to Martin’s temporary cell and sexually assaulted her. She was shocked. She testified she "kind of led it on."
On July 11, 2013, a jail staff member told her she had an attorney visit. Thicklen took her to an attorney booth. He told her "we’re f*ckin’ " and sexually assaulted her. She testified she did "[n]ot really" want to engage in that sexual encounter, but she "didn’t dispute it ...." No attorney appeared in the booth. Martin assumed the "attorney visit" was fake. At least after the second sexual encounter with Thicklen, Martin definitively did not want to have any further encounters with him. But she could not avoid him.
On September 7, 2013, Thicklen took her to an attorney booth for another "attorney visit" that did not happen. He told her again "we’re f*ckin’." She said, He told her he was in gray and she was in blue, and his co-workers would believe him and not her. Corrections officers wore gray. Inmates wore blue. She understood him to mean "he’s in authority and ... he has power over me." She understood him to mean his co-workers would believe anything he said; he could falsely say she tried to grab or hit him, or tried to take his taser or gun, and she would be punished. She was worried about "max status": isolation for 23 hours a day on nutraloaf, which is like "dog food."2 She testified, He ordered her to get on the table. She did not think she could say no. He vaginally raped her. She was scared, mad, and confused. The rape caused her to bleed. She entered preterm labor
and had to go to the hospital. Fear stopped her from reporting. The hospital stopped the bleeding and contractions. She returned to jail that night. About a month later, on October 4, 2013, Martin went into labor and returned to the hospital. She was shackled by her leg and wrist throughout virtually her entire hospitalization, even during most of the delivery process. The child was born in good health. Martin had to leave her baby with family and return to jail on October 6, 2013.
Four days after delivery, Thicklen sexually assaulted Martin a fourth time in her room in the jail infirmary. She felt violated and sick. She did not feel she could stop it. On November 15, 2013, he took her to a holding cell near the medical clinic. He sexually assaulted her a fifth time. She did not see any medical professional on that occasion.
Martin testified that during each sexual assault, Thicklen was in uniform, armed, and on duty working for County. All five assaults occurred in jail. Every time, he had to use his keys, power, and authority. He told her he would be fired if people found out. He took steps to hide the assaults. For example, he assaulted her off camera. Finally, on December 3, 2013, she reported the sexual assaults when she was concerned he possibly gave her a disease which spread to her child. An investigation began that day. She was transferred the next day. Thicklen was dismissed and prosecuted.
Martin sued Thicklen and County. Count I asserted a claim under 42 U.S.C. § 1983 for violation of the Fourteenth Amendment’s due process clause, arising out of the sexual assaults. Count II asserted a claim arising out of the shackling during delivery. Count III brought a claim for failure to intervene. Count IV brought a claim against County for indemnification under Wisconsin Statute § 895.46 for the sexual assaults. County moved for summary judgment on Counts I, III, and IV. County argued, among other things, that as a matter of law Martin could not establish Thicklen was acting within the scope of employment when he sexually assaulted her. The district court granted summary judgment to County on Counts I and III but denied summary judgment on Count IV, concluding material issues of fact existed about whether Thicklen was acting within the scope of his employment when he sexually assaulted Martin. County sought—but the district court denied—leave immediately to appeal the denial of summary judgment on indemnification.
The case went to jury trial. Thicklen did not appear. Martin’s only claim against him at trial was her § 1983 claim for the sexual...
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