“A Match Into The Tinderbox”

A majority of the Wisconsin Supreme Court affirmed the grant of summary judgment to a municipality in connection with a sexual assault by a correctional official against an inmate

We conclude that Slabey’s § 1983 claim against Dunn County fails because, under Monell v. Department of Social Services, 436 U.S. 658 (1978), no reasonable fact finder could conclude that Dunn County was the causal, moving force behind the sexual assault. A § 1983 plaintiff 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 (1997) (quoting City of Canton v. Harris, 489 U.S. 378, 388 (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.

The court majority focuses on the training provided rather than the facts pled in support of the case.

Dissenting Justice Jill Karosky suggests that, perhaps, the deliberate indifference lies elsewhere

Prisons and jails must take steps to prevent and detect sexual misconduct. And important to this case, when sexual abuse does occur, it is incumbent on the judicial system to hold to account those who are responsible in order to protect vulnerable inmates. It is here where the majority falls short. In wrongly concluding that the circuit court’s grant of summary judgment for Dunn County should be upheld, the majority allows the county to escape all responsibility for (1) ignoring clear warning signs that former Dunn County correctional officer Ryan Boigenzahn had engaged in inappropriate and escalating behavior with female inmates, and (2) creating the circumstances that allowed Boigenzahn to sexually assault Rachel Slabey while she was incarcerated in the Dunn County Jail.

Inconvenient well-pled facts to counter the majority

Boigenzahn sexually assaulted Slabey  while she was in her bunk in the Dunn County Jail on March 25, 2016.2 It was the middle of the night in the Huber Dorm.  Boigenzahn was tasked with checking the women’s dorm despite his recent suspension for violating the jail’s fraternization policy. Boigenzahn surveyed the women’s dorm alone, unmonitored, and entirely unsupervised. That night, Boigenzahn spent 45 minutes in Slabey’s dorm, an extraordinarily long time compared to the few seconds that guards usually took to check the dorm during the night. And although the Dunn County Jail practice is for the central office of the jail to conduct radio checks when an officer fails to report back to the central office after 10 minutes, no supervisor checked in on Boigenzahn during the 45 minutes he was in the dorm, despite his known history of fraternization. By all accounts, no one was monitoring Boigenzahn as he abandoned his duties to prowl around Slabey’s dorm.

The jail assigned Slabey to the only bunk in the dorm that was entirely unmonitored by security cameras, a fact both Boigenzahn and Slabey knew. Boigenzahn himself previously denied Slabey’s request to be moved to a different bunk. Additionally, the jail recently transferred Slabey from administrative segregation, causing her concern that if she did anything to “make a scene” or displease Boigenzahn, she would be transferred back. And, unsurprisingly, Slabey did not think that anyone would believe her or protect her if she spoke up and complained about Boigenzahn. In a word, Slabey was vulnerable.

Armed with the knowledge of his victim’s vulnerabilities, Boigenzahn entered the Huber Dorm, found Slabey and her bunkmate, D.S., and began talking with them. One of the topics of conversation was Boigenzahn’s reputation for spending an inappropriate amount of time with female inmates. Slabey “made a comment [to Boigenzahn] about do you ever get in trouble. . . . And [Boigenzahn was] like yeah, I’ve gotten in trouble before, he’s like, but I can——pretty much saying he didn’t care, you know.” As he was talking to the inmates, Boigenzahn began touching Slabey, first by rubbing her hand. Slabey tried to protect herself by moving away and lying down, but Boigenzahn persisted. He went after her, grabbing her pants, then her leg, then Boigenzahn shoved his hand down Slabey’s pants and inside  her underwear.

Notably

This sexual assault did not occur without warning. It was not a freak occurrence, a force majeure that could have neither been foreseen nor prevented. Instead, sheriff’s department officials——importantly here, the Sheriff himself—— first ignored the clear warning signs that Boigenzahn had already engaged in inappropriate and escalating behavior with female inmates, and then created the circumstances that allowed Boigenzahn to sexually assault Slabey.

Prior to the sexual assault, the Sheriff had ample warning that Boigenzahn was, in the words of one inmate, “dangerously close to crossing the line.” Sheriff’s department officials were first alerted to Boigenzahn’s conduct in July 2015, about eight months before the sexual assault. Inmate J.W.B. informed a correctional officer, and subsequently a jail sergeant, that officials needed to “keep a close eye on” the male correctional staff. When asked for an example, J.W.B. explained that on two separate occasions, an officer passed notes between female and male inmates. J.W.B. originally refused to identify the officer in question for fear of retaliation, but upon further questioning, she identified Boigenzahn. Passing notes was a violation of the Dunn County Jail’s fraternization policy, one that historically resulted in suspension or termination. Despite the seriousness of the allegations, the sergeant only reviewed surveillance video for one of the two instances J.W.B. reported, and he failed to question Boigenzahn or the inmates directly. After this cursory investigation, the sergeant concluded that there was no factual basis for J.W.B’s claims.

About one week later, another inmate, B.M., told a different sergeant that Boigenzahn was dangerously close to “crossing the line,” and that he had been getting “too chummy” with some of the female inmates.

Thus

Despite knowing that Boigenzahn had, at the very least, violated the jail’s fraternization policy and attempted to conceal and lie about his violations, the Sheriff decided against terminating Boigenzahn. The Sheriff made this choice despite the fact that violations of the fraternization policy “historically” resulted in termination, and despite the fact that Boigenzahn’s lying, in and of itself, was grounds for termination. The Sheriff opted instead for a far more lenient response and suspended Boigenzahn for three days before allowing him to return to work——in the same position——where he continued to have unfettered access to vulnerable women inmates. The Sheriff did not put Boigenzahn on a different shift, one where more staffing would allow for more supervision. He did not assign Boigenzahn to a different section, away from female inmates. He did not bar Boigenzahn from having further unsupervised contact with female inmates; in fact, he did not assign any staff to further monitor or investigate Boigenzahn at all. Instead, the Sheriff sent an officer who violated jail policies, lied to officials, and raised such serious red flags that multiple inmates reported him despite fears of retaliation, back to guard female inmates on the lightest-staffed shift with little to no monitoring. And that is how former officer Boigenzahn accessed, cornered, and sexually assaulted, Slabey on March 25, 2016.

Consequences

When municipalities take inmates into custody, they assume a responsibility to protect them from sexual assault. But this responsibility means little if the justice system is unwilling to hold municipalities accountable when they fail to protect their inmates. When municipalities are not held to account, measures like PREA, enacted to eliminate sexual assault in jails and prisons, are reduced to little more than a perfunctory policy for correctional staff to sign, then freely disregard. Dunn County threw a match into the tinderbox when it sent Boigenzahn back to guard female inmates. The majority’s failure to hold Dunn County accountable is akin to standing idly by as the fire burns.

I am authorized to state that Justice ANN WALSH BRADLEY joins this dissent.

(Mike Frisch)