Rankins v. Howard et al

Filing 72

ORDER signed by Judge J P Stadtmueller on 11/27/12 denying 43 defendants County of Milwaukee and David A. Clarke, Jr.'s Motion for Summary Judgment. (cc: all counsel) (nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MARLETHA RANKINS,
Plaintiff,
v.

Case No. 11-CV-1153-JPS

JAMES HOWARD,
COUNTY OF MILWAUKEE, and
DAVID A. CLARKE, JR.,
Defendants,

ORDER
WISCONSIN COUNTY MUTUAL
INSURANCE COMPANY,
Intervening Defendant.
Prior to the commencement of this civil lawsuit, defendant James
Howard (“Officer Howard”) was found guilty of second and third degree
sexual assault, arising out of an incident when Officer Howard, who was
working as a Correctional Officer in the Milwaukee County Jail, allegedly
assaulted1 plaintiff Marletha Rankins (“Ms. Rankins”). On December 21,
2011, Ms. Rankins filed this civil complaint under 42 U.S.C. § 19832 against

1

Howard maintains his innocence. Answer and Cross-Claim (Docket #10)
at 1; Brief in Opposition to County Defendants’ Motion for Summary Judgment
(Docket #51) at 1.
2

42 U.S.C. § 1983 provides, in relevant part: “Every person who, under color
of any statute, ordinance, regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress….”

Officer Howard, the County of Milwaukee (“County”), and Milwaukee
County Sheriff David A. Clarke, Jr. (“Sheriff Clarke”), seeking to recover
damages, fees, and costs. (Docket #1). Officer Howard filed a cross-claim
against the County, arguing that the County may be required to indemnify
him for any damages awarded against him to Ms. Rankins. (Docket #10).
Presently before the court is a Motion for Summary Judgment filed by the
County defendants3 seeking a summary judgment as to Ms. Rankins’s claims,
and seeking dismissal of Officer Howard’s cross-claim of indemnity. (Docket
#43).
1.

Legal Standard
The general standard for assessing motions for summary judgment

applies, namely: “The court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). “Material facts” are
those under the applicable substantive law that “might affect the outcome of
the suit.” Anderson, 477 U.S. at 248. A dispute over a “material fact” is
“genuine” if “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Id.
2.

Facts
On March 7, 2009, Ms. Rankins was being held in the Milwaukee

County Corrections Facility Central (“Jail”), awaiting extradition to the State
of Arkansas. (County Defendants’ Proposed Facts “PF” ¶ 1). Ms. Rankins
was assigned to cell 39 in Pod 6D on the sixth floor of the Jail. (PF ¶ 1). That

3

The County defendants are the County of Milwaukee and Sheriff Clarke.

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evening, Officer Howard, a Corrections Officer employed by the County, was
working third shift on the sixth floor of the Jail, along with Officer Jessica
Thompson (“Officer Thompson”), a female officer. (PF ¶ 2, ¶ 23).
During the third shift, two officers were assigned to and on duty on
each floor; these officers would alternate responsibilities. (PF ¶ 23, ¶ 31). One
officer would conduct cell inspections by walking through each pod, pulling
on every cell door to make sure they were secure, and looking into each cell
window to check on the inmates. (PF ¶ 31). The other officer would staff the
“floor control panel” located outside the pods; this officer was responsible for
allowing people to come and go and monitoring the medical emergency
buttons. (PF ¶ 27). The control panel included TV monitors, telephones,
intercoms to each cell on every floor, and a duress alarm or medical
emergency button for each cell that the prisoner could push to speak with an
officer. (PF ¶ 27).
On March 7, 2009, while conducting jail cell inspections, Officer
Howard allegedly entered Ms. Rankins’s cell and sexually assaulted her. (PF
¶ 2). Officer Howard allegedly entered her cell on two separate occasions
that night. (Plaintiff’s Proposed Facts ¶ 2.) Officer Howard was arrested,
charged with second degree sexual assault, and suspended from duty
without pay. (PF ¶ 43). On September 17, 2010, after trial in Milwaukee
County Circuit Court, a jury found Officer Howard guilty of second and
third degree sexual assault against Ms. Rankins. (PF ¶ 47).

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3.

Analysis
In her complaint, Ms. Rankins claims that her constitutional4 and

civil rights were violated due to: (1) the County’s alleged failure to train,
discipline, and supervise its officers; (2) the County’s policies permitting male
officers to guard female inmates; and (3) deficient hiring practice and policy.
(Compl.) In Rankins’s response to the County defendants’ motion for
summary judgment, Rankins explicitly retreats from her claim of deficient
hiring practice and policy, focusing instead on the County’s training
programs, supervision, and the policies and procedures followed by officers
on the night of the assault. Response Brief (Docket #55) at 2.
To prevail on her claims, Ms. Rankins bears the burden to establish
that “deliberate action attributable to the municipality directly caused a
deprivation of federal rights.” Board of Comm'rs of Bryan Cty. v. Brown, 520
U.S. 397, 415 (1997). Arguments relying on respondeat superior are insufficient
to support liability under § 1983; instead, Ms. Rankins must establish that the
County itself caused the alleged constitutional violation. Monell v. New York
City Dept. of Social Services, 436 U.S. 658, 691 (1978). In addition to proving
causation, Ms. Rankins must show that the County was deliberately
indifferent to her constitutional rights. Bryan Cty., 520 U.S. at 407.
The County defendants claim entitlement to summary judgment
against Ms. Rankins, arguing that she cannot show that a County policy or
custom was the cause of Howard’s sexual assault of plaintiff. Motion Brief

4

Rankins was in Jail awaiting extradition to the State of Arkansas, thus, her
§ 1983 claim is founded in the Due Process Clause of the Fourteenth Amendment
rather than the Eighth Amendment. Weiss v. Cooley, 230 F.3d 1027, 1032 (7th Cir.
2000). The Seventh Circuit has instructed that these standards are analogous.
Jackson v. Illinois Medi-Car, Inc., 300 F.3d 760, 764 (7th Cir. 2002).

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(Docket #44) at 2. Rankins responds that the County’s supervision policies
and procedures provide a causal link to the assault and evince “deliberate
indifference” to her Constitutional rights. Response Brief at 4. The court
concludes that there are genuine disputes as to material facts, and therefore
the court cannot resolve the claims via summary judgment.
In her response brief, Ms. Rankins argues that Officer Thompson’s
failure to supervise Officer Howard’s activities was “a direct cause of the
injuries to plaintiff.” Response at 5. Ms. Rankins argues that it is a question
of fact for the jury as to whether Officer Thompson should have observed
that Officer Howard took an extended period of time to do his rounds on the
night of the assault. Response at 5, 7. Additionally, according to Ms.
Rankins’s expert witness, Warren Cook, the County could have installed
“redundant door indicator lights” which would light up at the floor control
panel when a cell door was open. Response at 7. According to Ms. Rankins,
this would have alerted Officer Thompson that Officer Howard had entered
Ms. Rankins’s cell. Response at 7. Ms. Rankins also argues that Officer
Thompson could have monitored Officer Howard via the “Schlage” device
at each level of the pods, which records the location of the officers, or via
video cameras set up in the Jail. Response at 6, 8. The common thread
running through each of Ms. Rankins’s arguments is that Officer Thompson
did not adequately supervise Officer Howard, and that the Jail policy is
inadequate because it does not require such supervision.
The County defendants contend that plaintiff’s arguments as to what
policies the Jail could have had are inadequate to show deliberate
indifference to her constitutional rights. Reply (Docket #60) at 7. The County
defendants claim that Ms. Rankins’s expert, Warren Cook, “offered no

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criticism of Howard’s direct supervisor, the supervision of Howard on the
night in question, or of Milwaukee County’s staffing of the pod in general.”
Reply at 8. The court concludes that Cook’s analysis does, in fact, challenge
the Jail’s supervision policies. Cook’s “Supplemental Observations and
Opinions,” appended to Ms. Rankins’s Response Brief, state both “Officer
Jessica Thompson…did not properly monitor Officer Howard’s activities
while performing his inspection” and “…Rankins [ ] was unlawfully treated
with deliberate indifference and sexually assaulted on numerous occasions
by Corrections Officer James Howard, facilitated by the negligence of Officer
Jessica Thompson.” Supplemental Report of Findings - August 9, 2012
(Docket #47-11) at 2. Construing all evidence and inferences in favor of Ms.
Rankins, the court can only conclude that there exists a dispute as to the
supervision of Officer Howard, and that the dispute is material in that it
“might affect the outcome of the suit.” Anderson, 477 U.S. at 255, 248. Further,
this dispute is “genuine,” as “a reasonable jury could return a verdict for the
nonmoving party.” Id. at 248. Accordingly, the County defendants’ motion
for summary judgment of Ms. Rankins’s claims will be denied.
The County defendants also ask that the court dismiss Ms. Rankins’s
claim for statutory indemnification and Officer Howard’s cross-claim for
indemnity. These requests will be denied without prejudice, and the issue
of indemnification will be reserved for further consideration at trial.
Accordingly,

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IT IS ORDERED that the County defendants’ motion for summary
judgment (Docket #43) be and the same is hereby DENIED.
Dated at Milwaukee, Wisconsin, this 27th day of November, 2012.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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