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As we await opinions from the Supreme Court of Wisconsin's new term, we will go back to a few decisions from last term and crunch them down to size. Note: The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The “upshot” and “background” sections do not count as part of the 10 paragraphs because of their summary and necessary nature. We’ve also removed citations from the opinion for ease of reading but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names, which are also italicized. The case: Rachel Slabey v. Dunn County, Wisconsin, et. al Majority: Chief Justice Annette Kingsland Ziegler (30 pages) Dissent: Justice Jill J. Karofsky (25 pages), joined by Justice Ann Walsh Bradley  Ziegler The upshot 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 County 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. We conclude that Slabey's § 1983 claim against Dunn County fails because, under Monell v. Department of Social Services, no reasonable fact finder could conclude that Dunn County was the causal, moving force behind the sexual assault. . . . Background Ryan 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") 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. . . . Dunn 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 . . . ." 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. . . ." 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. 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 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. 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." . . . The next day, Sergeant Ormson discussed this matter with Sergeant Owens, who stated he heard similar allegations, and Sergeant Rachel Vold. The three decided that Sergeant Vold would review surveillance footage to investigate the allegations. Sergeant Vold reviewed two weeks of surveillance footage and found two concerning instances. On July 29, 2015, while delivering medications to inmates, Boigenzahn "playfully reach[ed] out his foot to step on [A.D.]'s foot." On August 6, 2015, again while delivering medications, Boigenzahn "gesture[d] with his head as if motioning someone to come in his direction, and also with his right arm. [A.D.] then [came] running over to him. . . . [A]s she walk[ed] away she brush[ed] him with her hand on his shoulder/chest area." Pursuant to Dunn County policy, Sergeant Vold forwarded this information to the Jail Captain on August 10, 2015. . . . . . . . Boigenzahn initially denied passing notes between inmates, but he admitted to doing so once the Jail Captain and Chief Deputy reminded Boigenzahn that he could be terminated for lying. Boigenzahn said he made a "dumb mistake passing (a) note and it w[ould] not happen again." They also showed Boigenzahn the videos of him and A.D., but he denied that there was any inappropriate conduct. . . . Pursuant to Dunn County policy, the matter was then brought to the Dunn County Sheriff. Based on the results of the investigation, the Sheriff decided that Boigenzahn violated Dunn County's policies which prohibited fraternization and unbecoming conduct. The Sheriff decided to impose discipline. Boigenzahn was suspended without pay for 3 days. About nine months later, in May 2016, inmate A.D. reported to Sergeant Vold that Boigenzahn again acted inappropriately. She stated that Boigenzahn frequently contacted inmate B.S. A.D. stated that on one occasion Boigenzahn accepted a note that was sexual in nature from B.S. Surveillance footage showed that on April 17, 2016, at 2:32 a.m., Boigenzahn spent 12 minutes out of camera view and near B.S.'s bunk. Boigenzahn later admitted that he did receive the note from B.S. On May 19, 2016, the County placed Boigenzahn on administrative leave, and on May 31, 2016, he was terminated. About one month after Dunn County terminated Boigenzahn, on June 27, 2016, inmate Slabey was heard saying, "[Boigenzahn] must have stuck his hand down somebody else's pants, too." According to Slabey, she said this "jokingly." Pursuant to County policy, the Jail Captain called her supervisor, the Chief Deputy, and the matter was reported to the Sheriff. The Sheriff requested that an outside agency investigate Slabey's allegations. The Menomonie Police Department then investigated the allegations against Boigenzahn. The criminal investigation regarding Slabey's statement revealed that on March 25, 2016, about seven months after Boigenzahn was first disciplined by the County, he sexually assaulted Slabey. . . . Notably, it was just two days prior to the sexual assault that, pursuant to Dunn County policy, Boigenzahn had attended a legal update session that included PREA training. Boigenzahn admitted that, at the time of the sexual assault, he knew it was against state law, against County policy, and against PREA. The guts The parties do not dispute that Slabey suffered a constitutional deprivation because she was sexually assaulted by Boigenzahn. The issue in this case is not whether Boigenzahn committed a sexual assault. He did, and what he did to Slabey was terribly wrong. But a claim against Boigenzahn is not the claim we analyze today. Whether Dunn County is liable to Slabey under 42 U.S.C. § 1983 is an altogether separate legal inquiry. . . . In short, Slabey asserts that "Dunn County was deliberately indifferent to a substantial risk of harm to Slabey by failing to thoroughly investigate, appropriately discipline, and adequately supervise Boigenzahn." *** In the Monell case, the Supreme Court explained that "Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort." "Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." . . . To prevail in her claim under 42 U.S.C. § 1983 against Dunn County, Slabey must demonstrate that the County caused her constitutional deprivation. Slabey argues that causation is satisfied because (1) "Dunn County failed to thoroughly investigate claims that Boigenzahn's conduct would cross a line"; (2) "Dunn County failed to appropriately discipline Boigenzahn in light of the clear risk of harm that his conduct posed to inmates generally and Rachel Slabey specifically"; and (3) Dunn County "failed to properly supervise Boigenzahn to prevent any further escalation of his misconduct." Slabey argues that these acts of the County caused her constitutional deprivation because they "caused Boigenzahn's conduct to escalate to Slabey's assault." "Where a plaintiff claims that the municipality has not directly inflicted an injury, but nonetheless has caused an employee to do so, rigorous standards of . . . causation must be applied to ensure that the municipality is not held liable solely for the actions of its employee." Monell requires plaintiffs to "demonstrate a direct causal link between the municipal action and the deprivation of federal rights." . . . A plaintiff bringing a § 1983 claim under Monell must demonstrate that a municipality was not just a cause, but the "moving force" behind the constitutional deprivation. . . . . The requirement is "applied with especial rigor when the municipal policy or practice is itself not unconstitutional, for example, when the municipal liability claim is based upon inadequate training, supervision, and deficiencies in hiring." In such cases, a § 1983 plaintiff "must" prove causation by showing "that the municipal action was taken with 'deliberate indifference' as to its known or obvious consequences. A showing of simple or even heightened negligence will not suffice." Evidence of a "pattern of tortious conduct" is typically necessary to establish that the municipal action "rather than a one-time negligent administration of the program or factors peculiar to the officer involved in a particular incident, is the 'moving force' behind the plaintiff's injury." Slabey acknowledges that hers is a "single incident" case because of the "absence of prior sexual assaults of female inmates by male guards." She argues that, although the single incident theory governs her claim, she nonetheless prevails under that theory because "Dunn County acted with deliberate indifference to a significant, obvious risk of sexual violence to all female inmates." *** . . . . Dunn County thoroughly investigated the August 2015 complaint and acted in a timely manner to impose unpaid leave on the officer. Boigenzahn was sternly warned for the policy violations, which were passing notes between inmates and non-sexual physical contact with an inmate. He was warned that his behavior would not be tolerated and that he could be terminated. Leave without pay was one of the most severe options of discipline, just short of termination. When Boigenzahn returned to duty, he was required to continue training and monthly policy reviews. Nine months had gone by with Boigenzahn working as a CO, and there was no indication of his noncompliance. The very next time the County learned that Boigenzahn was noncompliant because he had received a note from an inmate, he was terminated. . . . Slabey argues Dunn County acted with deliberate indifference to a known or obvious consequence that Boigenzahn would sexually assault an inmate when it "failed to thoroughly investigate claims that Boigenzahn's conduct would cross a line," "failed to appropriately discipline Boigenzahn in light of the clear risk of harm that his conduct posed to inmates generally and Rachel Slabey specifically," and when it "failed to properly supervise Boigenzahn to prevent any further escalation of his misconduct." However, this allegation in the August 2015 complaint was thoroughly investigated. The County officials reviewed two weeks of surveillance video, interviewed inmates, and concluded that Boigenzahn committed a serious violation of County policy. The evidence demonstrated that Boigenzahn passed notes between inmates and had inmate nonsexual contact. The County acted within a month from allegation to discipline. The matter did not languish. Despite several less severe options, Boigenzahn was suspended for three days without pay and sternly warned, "If you fail to [correct your improper conduct], you will subject yourself to further disciplinary action, including discharge and termination of your employment with the County." He was also given additional PREA training two days before the assault. For about nine months after Boigenzahn returned, Dunn County had no reason to believe he was noncompliant. *** In short, Dunn County is entitled to summary judgment because there is insufficient evidence for a reasonable fact finder to conclude that Dunn County was the moving force behind her being sexually assaulted. Boigenzahn sexually assaulting Slabey was the result of his action, which was completely forbidden by Dunn County and the criminal law. It is hindsight alone that underlies Slabey's causation theory. . . . Taken together, these facts do not demonstrate that the known or obvious consequence of the County's action or inaction was that Boigenzahn would sexually assault an inmate. Here, there is insufficient evidence that 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.  Karofsky The dissent
While the standards for establishing municipal liability under § 1983 are rigorous, "they are not insurmountable." In order to establish liability and survive summary judgment on her claim against Dunn County, Slabey must bring sufficient evidence for a jury to reasonably find that Dunn County (1) had an official policy, custom, or decision, (2) that demonstrated the requisite level of culpability, and (3) caused her injury. . . . First, Slabey must identify an official Dunn County policy or custom that caused her injury. The Supreme Court has recognized that a decision by an official with final policy-making authority meets this requirement—that is, municipal liability attaches when "a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question." Inaction, as well as action, may serve as the basis for municipal liability, depending on the circumstances. Second, Slabey must establish Dunn County's culpability, which under Monell means that she must provide sufficient evidence for a jury to find that the county's actions demonstrated a "deliberate indifference" to the "known or obvious" consequence that a constitutional violation would occur. While a pattern of constitutional violations is "ordinarily necessary" to establish the requisite notice that an official course of conduct is inadequate, the risk of a constitutional violation may be so obvious that the municipality's actions could demonstrate deliberate indifference to that risk. The Supreme Court in City of Canton v. Harris provided the following example of deliberate indifference: if city policymakers, having armed their police officers with firearms, fail to train those officers on the constitutional limitations on deadly force, that failure could be characterized as deliberate indifference. . . . And in J.K.J. v. Polk County the Seventh Circuit provided another, one relevant to this case: the failure to institute more robust policies to prevent the sexual assault of female inmates in the face of a guard's escalating behavior can demonstrate deliberate indifference to the known or obvious risk of sexual assault. Third, Slabey must establish sufficient evidence for a jury to find that Dunn County's actions caused her injury. That is, the official actions must be the "moving force" behind the constitutional violation. . . . Slabey established sufficient evidence for a jury to find for her on each of these three requirements by: (1) identifying a course of action by a final policy-maker—namely, the Sheriff's choice to return Boigenzahn to his standard shift with no additional supervision; (2) alleging sufficient evidence for a jury to conclude that the risk of sexual assault was so predictable that the Sheriff's course of action constituted deliberate indifference; and (3) alleging sufficient evidence to show that the Sheriff's course of action caused the sexual assault. Her § 1983 claim against Dunn County should therefore survive summary judgment. . . . . . . . As Slabey points out, and Dunn County does not dispute, the Sheriff was the final policy-maker for staffing and disciplinary decisions at the Dunn County Jail. And he, as that final policy-maker, deliberately chose to adopt a particular course of action—to retain Boigenzahn and send him back to guard female inmates alone, on the lightest-staffed shift, with no additional supervision, investigation, or follow up. The Sheriff had "various alternatives" to his course of action. One of those alternatives was to terminate Boigenzahn. Termination was not just an option, but (as the Sheriff acknowledged), the typical disciplinary response for violations of the fraternization policy. Another alternative was to adjust Boigenzahn's schedule to accommodate increased supervision and monitoring of his behavior. The Sheriff considered these alternatives, but instead chose the one course of action that would allow Boigenzahn to spend significant time alone and unmonitored with female inmates. *** Slabey also met the culpability requirement because she presented enough evidence for a jury to reasonably find that the Sheriff's official course of action was taken with deliberate indifference to the known or obvious risk that a sexual assault would occur. Whether the risks were known or obvious and whether the Sheriff acted with deliberate indifference are questions of fact. . . . (A) jury, assessing the facts of this case, could reasonably conclude that: (1) Boigenzahn’s prior behavior created a known or obvious risk that he would sexually assault an inmate and (2) the Sheriff's decision to send Boigenzahn back to guard female inmates reflected deliberate indifference to that risk. *** . . . . (E)vidence of an obvious risk of sexual assault can support both a finding of "deliberate indifference" and "an inference of causation—that the municipality's indifference led directly to the very consequence that was so predictable." If a jury could reasonably conclude that the risk of sexual assault was obvious enough that the failure to take action constituted deliberate indifference, it may take "but a small inferential step" for a jury to find that the failure to take action caused the injury. Causation, like culpability, is a fact question for a jury—"finding causation is not a mechanical exercise like working a math problem and getting an answer, but instead requires jurors to view evidence in its totality, draw on their life experiences and common sense, and then reach reasonable conclusions about the effects of particular action and inaction" (emphasis in original). Here, Slabey established enough evidence for a jury to do so. *** Based on the evidence Slabey provided, a jury could find that Dunn County Sheriff's Department officials 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. The Sheriff's deliberate course of action enabled Boigenzahn to escape detection for 45 minutes as he was working alone, unsupervised, and unmonitored in the Huber dorm on the night he sexually assaulted Slabey. Slabey provided sufficient evidence for a jury to reasonably find that the Sheriff's course of action both demonstrated deliberate indifference and was the causal "moving force" behind the sexual assault. Slabey's § 1983 claim against Dunn County should therefore survive summary judgment. 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.
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