Doe v. County of Milwaukee et al

Filing 294

ORDER signed by Judge J.P. Stadtmueller on 9/28/2017: DENYING without prejudice 270 and 288 Defendant County of Milwaukee's Motions for Leave to File Attorney Appearances; DENYING without prejudice 271 Defendant County of Milwaukee� 39;s Motion for Leave to File Cross-Claim; DENYING without prejudice 272 Defendant County of Milwaukee's Motion to Vacate Partial Final Judgment in Favor of Former Intervenor Wisconsin County Mutual Insurance Corporation; DENYING without preju dice 273 Defendant County of Milwaukee's Motion to Stay; GRANTING 291 Defendant County of Milwaukee's Motion for Leave to File Oversized Reply Brief; DENYING 275 Defendant County of Milwaukee's Motion for Judgment as a Matter of Law or for a New Trial; DISMISSING Sheriff David A. Clarke, Jr. and John/Jane Doe from action; and DISMISSING Plaintiff's claim for a class action with respect to Defendant County of Milwaukee's restraint policy. See Order for further details. (cc: all counsel) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
SHONDA MARTIN,
Plaintiff,

v.

COUNTY OF MILWAUKEE, XAVIER
D. THICKLEN, and JOHN/JANE
DOE,

Case No. 14-CV-200-JPS-JPS

ORDER

Defendants.

1.

INTRODUCTION
This matter was tried to a jury and a verdict was rendered on June 7,

2017. (Docket #259). The jury found in favor of Plaintiff and awarded her
$6.7 million in damages. Id. A myriad of post-trial motions filed on behalf
of Defendant County of Milwaukee (the “County”) and its insurer
followed. One, seeking judgment as a matter of law or a new trial pursuant
Federal Rules of Civil Procedure (“FRCP”) 50(b) and 59, was filed by its trial
counsel. (Docket #275). The others, raising insurance coverage issues, were
submitted by new counsel. (Docket #270, #271, #272, #273, #288). Each of the
motions will be denied.1

On June 4, 2017, the day before trial began, former defendant Sheriff David
A. Clarke, Jr. (“Clarke”) moved for removal from the caption of this case, arguing
that his presence was duplicative of the County’s. (Docket #249). The Court went
beyond Defendants’ request and dismissed Clarke from the case entirely. (Docket
#264 at 5:3-7:16). The case has proceeded since then without any reference to
Clarke. This order will now formally memorialize the Court’s earlier ruling and
dismiss Clarke from this action.
1

2.

ANALYSIS
2.1

Insurance Dispute Motions

On July 26, 2017, the County filed a number of motions seeking to
address its concerns with insurance coverage provided by Wisconsin
County Mutual Insurance Corporation (“WCMIC”), a former intervenor in
this matter, related to the claims asserted in this case. Id. The motions are
lengthy but easily summarized. WCMIC has informed the County that it
will not pay the jury’s $6.7 million damage award. The County believes, for
various reasons, that it should be afforded coverage. The County wishes to
stay further proceedings on the substantive aspects of this case, namely any
post-trial motions or appeals, until this insurance coverage dispute is
resolved.
The Court must deny the County its requested relief. This case, now
well past its third birthday, is about what happened to Plaintiff while she
was in the custody of the Milwaukee County Jail. All of those issues have
been decided either by the Court’s prior rulings or by the jury trial held in
early June. Now, more than a month after that trial, the County wishes to
hijack this litigation to resolve its insurance coverage dispute. It attempts to
start what is in essence an entirely new action against WCMIC, raising
solely state-law causes of action. Indeed, the only basis for federal
jurisdiction over the County’s claims is supplemental jurisdiction under 28

A similar issue arises from the Doe defendants. Plaintiff “dismissed” them
via a footnote in the final pretrial report. (Docket #223 at 2 n.1). This request for
dismissal was never ruled upon. The Court now grants it.
Finally, on March 20, 2017, Plaintiff withdrew her request for class
certification as to her shackling claim. (Docket #172). The Court will formally
dismiss the class action portion of that claim.

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U.S.C. § 1367(a) premised on Plaintiff’s underlying claims. See (Docket 2711 at 3, 18-30).2
As the County correctly notes, the question of whether to permit its
proposed cross-claims is governed by FRCP 15(a)(2). Tragarz v. Keene Corp.,
980 F.2d 411, 431-32 (7th Cir. 1992). This Rule allows amendment of
pleadings only “when justice so requires.” Fed. R. Civ. P. 15(a)(2). Justice
does not require the Court to permit the County leave to join its crossclaims, and it would in fact be offended if leave was granted. The prejudice
to Plaintiff—having her case taken over (and put on hold indefinitely) to
resolve a fight as to who must pay her—is undeniable. Little, if any, judicial
economy would be served, as the subject of the cross-claim is almost
entirely independent of the substantive motion practice which has already
been completed.3 This Court is no better equipped than any other to
adjudicate the County’s insurance quarrel.

The County’s claims are for declaratory judgment under the Declaratory
Judgment Act, 28 U.S.C. § 2201. This statute does not provide an independent basis
for federal court jurisdiction. See Rueth v. U.S. E.P.A., 13 F.3d 227, 231 (7th Cir.
1993). Thus, declarations about an alleged breach of contract, breach of the duty
of good faith and fair dealing, and equitable estoppel do not implicate the Court’s
subject-matter jurisdiction on their own. Further, the Court declines to exercise
supplemental jurisdiction over the County’s claims because they “substantially
predominate[] over the claim or claims over which the district court has original
jurisdiction[.]” 28 U.S.C. § 1367(c)(2). With final judgment entered on Plaintiff’s
underlying causes of action, the County’s cross-claims would not simply
predominate, but would be the only claims before the Court. This is not a proper
exercise of supplemental jurisdiction.
2

One of the County’s primary reasons for this rash of motions is that it
believes the Court’s earlier judgment in favor of WCMIC, upon WCMIC’s motion
for summary judgment, should be vacated. See (Docket #272). The issue decided
by the Court in WCMIC’s motion is, in substance, largely separate from the claim
presented by the County. WCMIC sought a determination that Defendant Xavier
Thicklen’s (“Thicklen”) actions were criminal and thus were not covered under
the “penal statute” policy exclusion. (Docket #157 at 32-36). The County now
3

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Finally, the County’s invocation of FRCP 13(g) is improper. Crossclaims are permitted under this Rule only when the cross-claim “arises out
of the transaction or occurrence that is the subject matter of the original
action or of a counterclaim, or if the claim relates to any property that is the
subject matter of the original action.” Fed. R. Civ. P. 13(g). Neither of those
criteria are satisfied here; the County’s insurance dispute has nothing to do
with whether Plaintiff was sexually assaulted by Thicklen or whether she
was restrained to a hospital bed during childbirth. Without proper joinder
under FRCP 13(g) (which in turn implicates the Court’s supplemental
jurisdiction), the County’s claims must have an independent basis for

alleges that WCMIC is improperly using the Court’s ruling to deny coverage.
(Docket #271). Specifically,
The penal code exclusion is not properly asserted against
the County, as it is untimely and was not properly reserved.
Significantly, even if the exclusion had been reserved, WCMIC’s
attempts to avoid coverage obligations by imputing the intentional
conduct of one insured, [Thicklen], against another insured, the
County, are expressly prohibited by WCMIC’s policy. With regard
to the penal code exclusion, WCMIC’s Policy expressly provides:
“any fact pertaining to any one insured shall not be imputed to any
other insured for the purpose of determining the application of this
exclusion.” This Court has never been given the opportunity to
consider the limitations expressly applicable to the penal code
exclusion.
Id. at 2. The County admits, then, that the Court’s earlier summary judgment
opinion and resultant judgment has little bearing on whether WCMIC’s coverage
position is justified. (Docket #272 at 2) (as to the Thicklen coverage ruling,
“WCMIC did not seek this Court’s adjudication of WCMIC’s coverage obligations
to the County.”). In other words, the Court’s ruling on the WCMIC-Thicklen
dispute in no way dictates the outcome of the putative WCMIC-County dispute.
This is confirmed by the language of the judgment itself, which is directed only at
Thicklen’s coverage, not the County’s. (Docket #161). Thus, there is no identity of
fact or law between the underlying claims and the proposed cross-claim that
would be of meaningful assistance to the Court or the parties.

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federal subject-matter jurisdiction. Am. Nat. Bank and Trust Co. of Chicago v.
Bailey, 750 F.2d 577, 581-82 (7th Cir. 1984). As explained above, they do not.
For all of these reasons, the County’s motions for leave to file a crossclaim, (Docket #271), to vacate the Court’s prior judgment in favor of
WCMIC, (Docket #272), and to stay post-trial proceedings in this matter,
(Docket #273), must be denied. Each motion will be denied without
prejudice to the extent this ensures that the arguments therein are preserved
for a potential state court action filed by the County. The Court will also
deny the County’s motions for leave to file attorney appearances because
they are unnecessary. (Docket #270 and #288).4 The Court does not involve
itself in the parties’ selection of counsel, and the County may have any
lawyer it chooses enter an appearance on its behalf.
2.2

Motion for Judgment as a Matter of Law or a New Trial

The Court now turns to the County’s post-trial motion made
pursuant to FRCP 50(b) and 59. (Docket #275). The vast majority of the
County’s argument is directed at whether Xaiver Thicklen (“Thicklen”) was
acting within the scope of his employment when he assaulted Plaintiff. The
Court ruled on summary judgment that the County was not entitled to
judgment as a matter of law on this point, and the evidence adduced at trial
was not materially different than that presented at the dispositive motion
stage.5 In essence, then, the County seeks reconsideration of the summary

The Court will also grant the County’s motion to file an oversized reply
brief. (Docket #291).
4

The County offers only one paragraph in its reply on whether the evidence
at trial differed from that on summary judgment. (Docket #287 at 13-14). The thrust
of this abbreviated argument is that Plaintiff failed to offer adequate evidence of
Thicklen’s intent to serve the County’s interests when he assaulted her (a critical
aspect of the scope issue). The County faults her for not attempting to rebut its
5

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judgment decision. The Court has already provided to the parties all of the
wisdom it can offer on this point. If the County desires a different outcome,
it must seek it in the Court of Appeals. This is true not only for the County’s
request for judgment notwithstanding the verdict under FRCP 50(b), but
also its claim of instructional error under FRCP 59. The jury instructions
were crafted in accordance with the Court’s view, consistent throughout
this case, of the state of the law on the scope of employment issue. The
County’s FRCP 50(b) motion will be denied in its entirety, and the FRCP 59
motion will be denied as to the instructional issue.
The remainder of the County’s FRCP 59 motion is directed at the
jury’s awards of $1.7 million in compensatory and $5 million in punitive
damages. The County asserts that each award is excessive, but its
arguments are half-hearted and merit little discussion. Compensatory
damages awards that are “monstrously excessive” or which lack a rational
connection to the evidence (the inquiries are one-and-the-same) cannot be
allowed to stand. Adams v. City of Chicago, 798 F.3d 539, 543 (7th Cir. 2015).

evidence regarding Thicklen’s training, his attempts to conceal his conduct from
the County, and his resignation. Id. at 13. Finally, the County claims that the
evidence of Thicklen’s intent adduced at summary judgment was “offered in
considerably more depth and detail at trial.” Id.
This is, in fact, no different than what occurred at the dispositive motion
stage. At summary judgment, Plaintiff largely admitted the truth of the County’s
intent evidence. However, her other evidence on the scope issue meant that the
intent question was reserved to the jury. (Docket #157 at 31-32). In other words,
the Court was required to draw an inference of Thicklen’s intent in Plaintiff’s favor
in accordance with the standard of review. At trial, neither party was able to offer
direct evidence of Thicklen’s intent because he never appeared at the proceeding.
Instead, the jury was free, but not required, to draw an inference of Thicklen’s
intent based on the evidence presented. It drew the inference in Plaintiff’s favor.
The evidence the jury reviewed was substantially similar to what the Court
considered on summary judgment, regardless of any additional “depth and
detail.”

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In determining the rationality of an award, “the district court must review
the trial record as a whole in the light most favorable to the verdict. This
perspective is essential, if we are to preserve the jury’s role as the trier of
fact.” Id. The jury’s compensatory damages award was not excessive in light
of the evidence presented, much less monstrously so. Contrary to the
County’s arguments, Plaintiff suffered both physical and emotional injuries
as a result of Thicklen’s repeated sexual assaults.
The County’s citations to similar cases with lesser awards misses the
mark. See (Docket #276 at 24-27). All are district court opinions which
supply only persuasive, not controlling, guidance. Further, each case was
before the district court on a motion for default judgment. None of the
opinions discussed any alleged excessiveness of a jury’s compensatory
damages award or involved actually altering such an award. The County
has not provided the Court with any appellate authority, much less from
the Seventh Circuit, finding that an award of compensatory damages was
excessive in a case involving repeated sexual assaults. This Court will not
be the first to so hold. The jury’s compensatory damages award is not
excessive as a matter of law.
Though the punitive damages analysis is different, the same result
obtains. Punitive damages “serve the same purposes as criminal
penalties[,]” and thus such damages must comport with due process. State
Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 417 (2003). When punitive
damage awards are “grossly excessive,” due process may be offended.
Farfaras v. Citizens Bank & Trust of Chicago, 433 F.3d 558, 567 (7th Cir. 2006).
The Supreme Court has announced three guideposts to help courts evaluate
this concern. These are: “[1] the degree of reprehensibility of the
defendant’s conduct; [2] the disparity between the harm suffered by the
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plaintiff and the punitive damages award; and [3] the difference between
the award in this case and the penalties imposed in comparable cases.”
Gracia v. SigmaTron Int’l, Inc., 842 F.3d 1010, 1023 (7th Cir. 2016) (citing BMW
of N. Am., Inc. v. Gore, 517 U.S. 559, 574-75 (1996)).6
The first guidepost is the most important aspect of a punitive
damages award. E.E.O.C. v. Autozone, 707 F.3d 824, 838 (7th Cir. 2013). To
say that Thicklen’s conduct was merely reprehensible is almost sickeningly
generous. He repeatedly raped a young woman at varying stages of
pregnancy, abusing the power he had over her in the most heinous manner
possible, causing her physical and (lasting) mental injuries at a time when
she was exceedingly vulnerable. As to the second guidepost, the Seventh
Circuit has noted that “[t]he Supreme Court has repeatedly declined to set
a fixed ratio to limit punitive damages based on constitutional grounds, but
it has recognized that in practice, ‘few awards exceeding a single-digit ratio
between punitive and compensatory damages . . . will satisfy due process.’”
Id. at 839 (quoting State Farm, 538 U.S. at 424-25). The ratio in this case is just
2.94:1. See BMW of N. Am., 517 U.S. at 581-82 (citing with approval ratios of
double, treble, and quadruple damages). The jury specifically noted the
justification for its award of $5 million, stating on the verdict form that the
award was “$1 million per incident [of sexual assault].” (Docket #259 at 2).
And on the third factor, as with the compensatory damages discussion, the
County again fails to cite Circuit precedent on punitive damages involving

The parties’ arguments seem to lose sight of the target of the punitive
damages awards, which is Thicklen himself, not the County. The fact that the
County must indemnify him for the punitive damages has nothing to do with their
propriety.
6

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sexual assaults. (Docket #276 at 28-29). The County’s FRCP 59 motion
directed at the damages awards must be denied.
3.

CONCLUSION
The County has adequately preserved its assertions of error by this

Court for appellate review. That is the only path remaining for the County
to obtain its desired relief. Additionally, the County must take its insurance
dispute to state court. With nothing further to address, the Court will direct
that judgment by entered in Plaintiff’s favor in accordance with the jury’s
verdict.
Accordingly,
IT IS ORDERED that Defendant County of Milwaukee’s motions
for leave to file attorney appearances (Docket #270 and #288), for leave to
file a cross-claim (Docket #271), to vacate judgment in favor of former
intervenor Wisconsin County Mutual Insurance Corporation (Docket #272),
and to stay these proceedings (Docket #273) be and the same are hereby
DENIED without prejudice;
IT IS FURTHER ORDERED that Defendant County of Milwaukee’s
motion for leave to file an oversized reply brief (Docket #291) be and the
same is hereby GRANTED;
IT IS FURTHER ORDERED that Defendant County of Milwaukee’s
motion for judgment as a matter of law or for a new trial (Docket #275) be
and the same is hereby DENIED;
IT IS FURTHER ORDERED that Sheriff David A. Clarke, Jr. and
John/Jane Doe be and the same are hereby DISMISSED as defendants in
this action;
IT IS FURTHER ORDERED that Plaintiff’s claim for a class action
with respect to Defendant County of Milwaukee’s restraint policy for
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prisoners during their labor, delivery, and post-partum care (Docket #104
at 10-16) be and the same is hereby DISMISSED; and
IT IS FURTHER ORDERED that the Clerk of the Court shall enter
judgment in accordance with the jury verdict of June 7, 2017 (Docket #259).
Dated at Milwaukee, Wisconsin, this 28th day of September, 2017.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

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