Slabey v. Dunn Cnty.

• Decision Date: 18 January 2023
• Docket Number: 2020AP877
• Citation: 405 Wis.2d 404,983 N.W.2d 626,2023 WI 2
• Parties: Rachel SLABEY, Plaintiff-Appellant-Petitioner, v. DUNN COUNTY, Wisconsin, Dennis P. Smith, Brenda LaForte, Marshall L. Multhauf and Paul Gunness, Defendants-Respondents, Dunn County Sheriff's Office, Ryan Boigenzahn, John Doe One, John Doe Two and John Doe Three, Defendants, Wisconsin County Mutual Insurance Corporation, Intervenor.
• Court: Wisconsin Supreme Court

405 Wis.2d 404

983 N.W.2d 626

2023 WI 2

Rachel SLABEY, Plaintiff-Appellant-Petitioner,

v.DUNN COUNTY, Wisconsin, Dennis P. Smith, Brenda LaForte, Marshall L. Multhauf and Paul Gunness, Defendants-Respondents,Dunn CountySheriff's Office, Ryan Boigenzahn, John Doe One, John Doe Two and John Doe Three, Defendants,Wisconsin County Mutual Insurance Corporation, Intervenor.

No. 2020AP877

Supreme Court of Wisconsin.

Oral Argument: October 10, 2022

Opinion Filed: January 18, 2023

For the plaintiff-appellant-petitioner, there were briefs filed by Cristina M. Wirth, Martha H. Heidt, and Bye, Goff & Rohde, Ltd., River Falls.There was an oral argument by Cristina M. Wirth.

For the defendants-respondents, there was a brief filed by Samuel C. Hall, Jr., Timothy M. Johnson, Molly K. Woodford, and Crivello Carlson, S.C., Eau Claire.There was an oral argument by Samuel C. Hall, Jr.

An amicus curiae brief was filed by Mark L. Thomsen, Lynn R. Laufenberg, Kimberly D. Sweatt, and Gingras, Thomsen & Wachs, LLP, Madison, and James D. Rogers and Wisconsin Association for Justice, Madison, for the Wisconsin Association for Justice.

ZIEGLER, C.J., delivered the majority opinion of the Court, in which ROGGENSACK, REBECCA GRASSL BRADLEY, DALLET, and HAGEDORN, JJ., joined.KAROFSKY, J., filed a dissenting opinion, in which ANN WALSH BRADLEY, J., joined.

ANNETTE KINGSLAND ZIEGLER, C.J.

¶1 This is a review of an unpublished decision of the court of appeals, Slabey v. Dunn County, No. 2020AP877, unpublished slip op.(Wis. Ct. App. July 7, 2021), affirming the Dunn County circuit court's¹ order granting summary judgment in favor of Dunn County on Rachel Slabey's claim under 42 U.S.C. § 1983.We affirm.

¶2 Slabey argues that her § 1983 claim against Dunn County survives summary judgment because she presented evidence sufficient for a reasonable jury to find that Dunn County² violated her rights under the Eighth and Fourteenth Amendments to the United States Constitution when then-Dunn County Correctional Officer Ryan Boigenzahn sexually assaulted her.According to Slabey, Dunn County is liable because the "County was deliberately indifferent to a substantial risk of harm to Slabey by failing to thoroughly investigate, appropriately discipline, and adequately supervise Boigenzahn."Slabey argues that the circuit court erroneously granted Dunn County summary judgment and that the court of appeals erred in affirming that result.

¶3We conclude that Slabey's § 1983 claim against Dunn County fails because, under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611(1978), no reasonable fact finder could conclude that Dunn County was the causal, moving force behind the sexual assault.A § 1983plaintiff suing a municipality for a constitutional deprivation must prove that the municipality caused—that is, was the moving force behind—the constitutional deprivation.This requires evidence "that the municipal action was taken with ‘deliberate indifference’ as to its known or obvious consequences."Bd. of Cnty. Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 407, 117 S.Ct. 1382, 137 L.Ed.2d 626(1997)(quotingCity of Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412(1989) ).Here, there is insufficient evidence demonstrating Dunn County acted with deliberate indifference to a known or obvious consequence that Boigenzahn would sexually assault Slabey.The circuit court was correct to grant Dunn County summary judgment on Slabey's § 1983 constitutional deprivation claim.We affirm the court of appeals.

I.FACTUAL BACKGROUND AND PROCEDURAL POSTURE

¶4Ryan Boigenzahn began working as a correctional officer ("CO") at the Dunn County Jail in April 2011.As part of his training, Dunn County required Boigenzahn to attend the Jail Academy at Nicolet College.There, Boigenzahn took a month-long, 160-hour course where, according to Boigenzahn, he learned "what it is to be a corrections officer in the state of Wisconsin."Boigenzahn was also required to participate in the course's Prison Rape Elimination Act of 2003 ("PREA")³ training.Boigenzahn admitted during his deposition that he"learn[ed] through that training ... that sexual contact between inmates and prisoners was" prohibited by law.He passed the training course, and he received his certification from the Law Enforcement Standards Board in June 2012.Boigenzahn worked third shift at the jail as a CO, which was from 10:30 p.m. to 7:00 a.m.

¶5Dunn County also required Boigenzahn to review and certify that he reviewed all Dunn County policies, including the County's fraternization, sexual misconduct, and PREA policies.Boigenzahn signed these policies, stating, "I certify that I have read, understand, and will comply with the policies...."Dunn County's fraternization policy includes, in relevant part:

Employees of the Dunn County Sheriff's Office shall not:

a. Have a relationship with an inmate/prisoner or the spouse of an inmate/prisoner under the supervision or custody of the Dunn County Jail, for one year after their release.

b. Have a relationship with individuals whom the employee knows is [sic] incarcerated in a state correctional facility or a county jail other than the Dunn County Jail, or under the supervision of the Wisconsin Department of Corrections(Probation/Parole), or for one year after their release.

c. Have personal contacts that are usually one-to-one such as dating, knowingly form close friendships, correspond without an exception granted or have visits that are not job related, for a period of one year after their release.

d. Accept or give gifts, provide services in exchange for work performed, for one year after their release.

e. Encourage or allow to occur, the exchange of personal or departmental information between the employee and an inmate.

The sexual misconduct/PREA policy prohibits all staff, including COs like Boigenzahn, from engaging in sexual misconduct, which the policy defines as follows:

Sexual Misconduct is any behavior or act of a sexual nature directed toward an inmate, detainee, victim, witness, or complainant by any employee, volunteer, vendor, contractor, visitor or agency representative.

1.This includes acts or attempts to commit such acts including, but not limited to, sexual assault, sexual abuse, sexual harassment, sexual contact, conduct of a sexual nature or implication, obscenity and unreasonable or unnecessary invasion of privacy.

2.Sexual misconduct also includes, but is not limited to, conversations or correspondence that suggests a romantic or sexual relationship involving any person mentioned above.

3.Sexual misconduct is not limited to unwanted sexual contact.Sexual misconduct is also a range of behaviors or situations that include inappropriate remarks, sexualized name-calling, correspondence, conversations, inappropriate displays, fondling, inappropriate viewing, and sexual contact with individuals vulnerable to the authority of the justice system or any other person in a work setting.Such acts are inappropriate in a work setting and presumed to be unwelcome.

4.Romantic relationships between supervisors and those under their supervision are presumed to be coercive and may be deemed sexual harassment or misconduct.

Dunn County's sexual misconduct/PREA policy also requires staff to report and investigate all alleged violations:

A.Reporting Requirements

1.Any employee or staff member who knows or reasonably suspects that any employee may be or has been involved in sexual misconduct is required to inform the Jail Captain. To protect the reputations and integrity of all persons engaged in such a process, including the accuser, the accused, and the alleged victim, all such reports shall be dealt with as matters of highest discretion both before and after they have been submitted to appropriate authorities. ....

4.Upon receiving a report of possible sexual misconduct or harassment, the Jail Captain shall notify the Chief Deputy.The Chief Deputy shall in turn notify the Sheriff and other Command Staff as appropriate and needed.

B.Investigation

1.All reported violations of sexual misconduct, including sexual assault and harassment, will be investigated and, as warranted, will be resolved through appropriate disciplinary processes and/or criminal proceedings in accordance with applicable state and federal laws.

Dunn County requires all staff, including COs like Boigenzahn, to regularly complete policy reviews.According to Boigenzahn's training log, he completed at least eight reviews of the County's fraternization, sexual misconduct, or PREA policies.After each policy review, Boigenzahn certified that he read and understood the policy.

¶6 On July 31, 2015, a CO informed Sergeant Michael Owens that inmate J.W.B. expressed that staff needed to "keep a close eye on [the]‘male COs.’ "Sergeant Owens immediately began investigating.He first interviewed J.W.B.During the interview, J.W.B. said that she observed Boigenzahn passing notes between inmates on July 28, 2015.Sergeant Owens also "asked her if one of [the] officers was developing a relationship with an inmate."J.W.B. said "no, nothing like that."Sergeant Owens also reviewed surveillance footage of the alleged incident and recorded phone conversations between the inmates suspected of note-passing.He discovered no evidence of misconduct and determined "[t]he allegation [was] not supported on a factual basis."Sergeant Owens recorded the results of his investigation in a report and, according to County policy, forwarded that report to his supervisor.

¶7 On August 6, 2015, a different inmate, B.M., said to Sergeant Douglas Ormson that "she actually had a lot of respect for the staff at the Jail, except for one person who she felt was in danger of ‘crossing the line.’ "Sergeant Ormson asked B.M. who she was referring to and to elaborate.B.M. identified Boigenzahn and said he"was too chummy with some of the females."B.M. said she saw another inmate, A.D., ...