J.K.J. v. Polk Cnty. & Darryl L. Christensen, s. 18-1498

• Decision Date: 15 May 2020
• Docket Number: Nos. 18-1498,18-2177,18-1499,18-2170,s. 18-1498
• Parties: J.K.J. and M.J.J., Plaintiffs-Appellees, v. POLK COUNTY and Darryl L. Christensen, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

960 F.3d 367

J.K.J. and M.J.J., Plaintiffs-Appellees,

v.POLK COUNTY and Darryl L. Christensen, Defendants-Appellants.

Nos. 18-1498

18-1499

18-2170

18-2177

United States Court of Appeals, Seventh Circuit.

Argued December 5, 2019

Decided May 15, 2020

Steven Edwards Art, Attorney, Sarah Grady, Attorney, Megan Pierce, Attorney, Loevy & Loevy, Chicago, IL, Lida Marie Bannink, Esq., Attorney, Thomas J. Weidner, Attorney, Eckberg, Lammers, P.C., Stillwater, MN, Adam Francois Watkins, Attorney, Watkins Bradley LLP, New York, NY, for Plaintiffs - Appellees.

Paul David Cranley, Attorney, Husch Blackwell, LLP, Madison, WI, for Defendant - Appellant.

Marisa Maleck, Attorney, Joshua N. Mitchell, Attorney, King & Spalding LLP, Washington, DC, for Amicus Curiae Institute for Justice.

Julie Abbate, Attorney, Just Detention International, Washington, DC, for Amicus Curiae Just Detention International.

Karyn Rotker, Attorney, American Civil Liberty Union of Wisconsin, Milwaukee, WI, for Amicus Curiae American Civil Liberties Union of Wisconsin.

Jennifer Wedekind, Attorney, American Civil Liberties Union, Washington, DC, for Amicus Curiae American Civil Liberties Union.

David Michael Shapiro, Esq., Attorney, Roderick & Solange MacArthur Justice Center, Chicago, IL, for Amicus Curiae Roderick & Solange MacArthur Justice Center.

Before Wood, Chief Judge, and Bauer, Easterbrook, Kanne, Rovner, Sykes, Hamilton, Barrett, Brennan, Scudder, and St. Eve, Circuit Judges.

Scudder, Circuit Judge.

While confined in the Polk County Jail, two female inmates, J.K.J. and M.J.J., endured repeated sexual assaults at the hands of correctional officer Darryl Christensen. The two women brought suit in federal court against Christensen and Polk County. A trial ensued, and the jury heard evidence of Christensen's horrific misconduct over a three-year period. The County's written policy prohibited sexual contact between inmates and guards but failed to address the prevention and detection of such conduct. Nor did the County provide any meaningful training on the topic. What is more, toward the beginning of the relevant period, the County learned that another guard made predatory sexual advances toward a different female inmate. The trial evidence showed that the County imposed minor discipline on the guard but from there took no institutional response—no review of its policy, no training for guards, no communication with inmates on how to report such abuse, no nothing. In the end, the jury returned verdicts for J.K.J. and M.J.J.

The case against Christensen was open and shut. But a divided panel of this court overturned the jury's verdict against Polk County, determining that the trial evidence failed to meet the standard for municipal liability under Monell v. Department of Social Services , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). We decided to rehear the case en banc and now affirm the jury's verdicts against both Christensen and Polk County. While the standard for municipal liability is demanding—designed to ensure that a municipality like Polk County is liable only for its own constitutional torts and not those of employees like Christensen—the evidence was sufficient to support the verdict against the County.

I

J.K.J. and M.J.J. sued Christensen and Polk County under 42 U.S.C. § 1983, alleging that the defendants violated the Eighth and Fourteenth Amendments by acting with deliberate indifference to a serious risk of harm to their safety and well-being. They also brought a negligence claim under Wisconsin law against the County. The district court consolidated the cases for trial. The five-day trial ended with the jury finding both defendants liable on all claims, and we recount the facts in the light most favorable to that verdict. See Martin v. Milwaukee County , 904 F.3d 544, 547 n.1 (7th Cir. 2018).

A

J.K.J. and M.J.J. suffered from addictions and committed crimes that landed them in the Polk County Jail intermittently between 2011 and 2014. Located in northwest Wisconsin, the institution houses up to 160 inmates, including a small number of women, and employs about 27 correctional officers. Christensen worked for 19 years as one of the guards tasked with protecting the inmates—a duty he severely betrayed.

J.K.J. and M.J.J.'s experiences with Christensen were unique but shared a basic pattern. Christensen began by commenting on their appearances—remarks like "nice ass" and "you're looking good"—with the verbal harassment then escalating to explicit sexual overtures. In time came physical contact, which began with Christensen groping and kissing the women and from there advanced to oral sex and digital penetration and eventually to intercourse. J.K.J. could not pinpoint the total number of times Christensen assaulted her but, by way of example, stated that, during a two-month period in the summer of 2012, he insisted on sexual contact every time he was on duty. For her part, M.J.J. estimated that Christensen engaged in sexual contact with her 25 to 75 times. These events spanned about three years.

Christensen took steps to conceal his misconduct within the jail. While making inappropriate sexual comments in front of others, he always made sure to take J.K.J. and M.J.J. to hidden areas to engage in the physical contact. Christensen also instructed both women not to tell anyone of the encounters because, if word got out, he would lose his job and family. For the most part, the women heeded his admonishment and kept the abuse to themselves during their incarceration. J.K.J. and M.J.J. explained their silence in terms familiar to many victims of sexual harassment and assault—shame, doubt anyone would believe them, and fear of retaliation.

But the truth eventually came out. Another county's investigator called Polk County to report an allegation that Christensen had sexual contact with an inmate.

Polk County responded by commencing an internal investigation, and Christensen resigned upon being confronted. A criminal investigation followed and led the Wisconsin Department of Justice to J.K.J. and M.J.J. After expressing initial reluctance to talk, both women eventually felt safe enough to trust the investigators with their stories. Christensen later pleaded guilty to criminal charges and is now serving a 30-year sentence.

B

Christensen's conduct was not the only evidence of sexual misconduct at the Polk County Jail that the jury heard. In 2012, toward the beginning of Christensen's assaults of J.K.J. and M.J.J., complaints surfaced that correctional officer Allen Jorgenson had an inappropriate relationship with a female inmate known as N.S. Sergeant Steven Schaefer brought the complaints to Captain Scott Nargis, the day-to-day head (effectively the warden) of the jail. Schaefer reported that Jorgenson had touched N.S. on her waist and rear end, adding that the complaints did not come as a surprise because "[w]e have all heard complaints about [Jorgenson's] inappropriate comments to both inmates and staff."

Captain Nargis responded by partnering with Deputy Sheriff Steven Moe to investigate the contentions. Although Jorgenson and N.S. denied any wrongdoing, Nargis and Moe believed lines had been crossed. Indeed, the investigation revealed that Jorgenson not only flirted with female inmates, but also focused video cameras on the female housing pod for an inordinate amount of time, and fostered an inappropriate relationship with N.S. But Moe testified that he initially did not believe Jorgenson had a sexual relationship with N.S.

Based on those findings, Moe and Captain Nargis decided that the right response was to issue a written reprimand to Jorgenson. As part of doing so they assured Jorgenson that the reprimand was not a "major deal" and he could move on from it. "After having confronted Allen," Moe testified, "we felt that it was important that we recognize and support Allen's prior work history. He was a good employee. He was a go-to employee. We appreciated his efforts and his work, so we wanted to salvage him as an employee."

But the issue reawakened when N.S. sent Captain Nargis a letter, dated January 19, 2012, explaining that she had lied in denying the allegations about Jorgenson. At J.K.J. and M.J.J.'s trial, the district court admitted N.S.'s letter not for its truth, but for the non-hearsay purpose of informing the jury of allegations of sexual misconduct that Polk County received during the relevant period.

N.S. began her letter by saying "I'm sorry for lying" and "I would like to tell the truth about the allegations made against Allen Jorgenson" because "[t]here are many things [Jorgenson] has said & done that have been inappropriate in a sexual manner towards me" and other inmates. Before detailing her own account, N.S. emphasized that "I did not tell the truth [earlier] because [Jorgenson] has told me to keep quiet & said he didn't wanna get in trouble." From there N.S. described the following misconduct that "started during my last stay here from 10-27-10 til 7-6-11 & is continuing through my incarceration now":

• Jorgenson "always makes comments about seeing us in the shower. He always calls it [a] ‘nice show.’ "

• He has asked me "what the color of the day was"—a question about the color of "my underclothes."

• "He has told me he wants me to ride topless in his boat, [and] he has wanted me to lift my shirt for him while I've been here [in the jail] both times."

• "Many times he's leaned over the cart to look down my shirt."

• "Recently he has started touching me." "Everyone knows he's doing these things" and "[w]hen he walks me back from the nurses office, visiting anywhere he shoves me & pushes me" and "very recently ... he grabbed me around my waist & kept his hand there til the K-Pod door opened then he slapped my butt."

• "[W]hen giving me meds, he'll look to see if the camera is on us. If not he comes around the cart & touches my back & butt as I go back in. One time the camera was on our direction, he said dam[n], I was gonna go in for the

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