J. K. J. v. Polk County Sheriff's Department et al

Filing 220

ORDER regarding Liability Instructions and Liability Special Verdict. Signed by District Judge William M. Conley on 1/25/17. Associated Cases: 3:15-cv-00428-wmc, 3:15-cv-00433-wmc (jat)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

J.K.J.,
Plaintiff,

ORDER

v.
15-cv-428-wmc
POLK COUNTY and DARRYL L.
CHRISTENSEN,
Defendants.
and
M.J.J.,
Plaintiff,
v.
15-cv-433-wmc
POLK COUNTY and DARRYL L.
CHRISTENSEN,
Defendants.

In its proposed draft closing liability instructions and liability special verdict, the
court did not include an instruction or verdict question with respect to plaintiffs’
proposed Fourteenth Amendment due process claim. The purpose of this order is to set
forth the court’s reasoning for declining to do so. Plaintiffs cite to Seventh Circuit cases
finding that rape committed under color of state law can constitute a violation of the
Fourteenth Amendment’s due process clause. (See Pls.’ Proposed Liability Instructions
(dkt. #134) 26 (citing Alexander v. DeAngelo, 329 F.3d 912, 916 (7th Cir. 2003) (“[A]
very serious battery, and a rape committed under color of state law is therefore actionable
under 42 U.S.C. § 1983 as a deprivation of liberty without due process of law.”); Wudtke

v. Davel, 128 F.3d 1057, 1062 (7th Cir. 1997) (“Her liberty claim of a right to bodily
integrity is, on the other hand, the type of claim that has often been recognized as within
substantive due process, particularly in the line of cases dealing with privacy rights.”)).)
These cases, however, concern sexual assault outside of the prison context, and
therefore outside of the protections of the Eighth Amendment afforded to plaintiffs here.
Plaintiffs fail to point to any cases in which a claim of sexual assault against a prison
correctional officer proceeded under the Fourteenth Amendment substantive due process
clause, nor could this court find any. Rather, this conduct has been consistently judged
under the deliberate indifference standard of the Eighth Amendment. Tellingly, plaintiffs
proposed instruction appears to be from a 2011 criminal case, United States v. Cates (for
which plaintiffs provide a docket number but no citation to access the instructions).
Moreover, at summary judgment, plaintiffs conceded that the deliberate
indifference standard under the Eighth Amendment governed their claims under the
Fourteenth Amendment as to any sexual assaults occurring while plaintiffs were
incarcerated as pretrial detainees. (Pls.’ Opp’n (dkt. #81) 5-6 (“Polk County is also
correct when it indicates that proceeding under the Eighth Amendment Analysis or a
Fourteenth Amendment analysis is a distinction without a difference as courts have
indicated that the standards are the same under both amendments.”).)

See also 7th

Circuit Pattern Civil Jury Instructions § 7.11, cmt. a. On this basis, the County objected
to any separate instruction on the Fourteenth Amendment.
Defendant’s objection is further bolstered by the Supreme Court’s general
admonition in Albright v. Oliver, 510 U.S. 266, 273 (1994): “When a particular
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amendment provides an explicit textual source of constitutional protection against a
particular sort of government behavior, that amendment, not the more generalized
notion of substantive due process must be the guide for analyzing these claims.”
Finally, given that the underlying facts giving rise to plaintiffs’ Fourteenth and
Eighth Amendment claims are essentially the same -- that Christensen caused plaintiff to
engage in unwanted sexual acts -- whether to demonstrate a due process violation of
bodily integrity or deliberate indifference to plaintiffs’ health and safety, the court is
concerned with unnecessarily complicating the questions to be considered by a lay jury,
or worse, confusing them. Accordingly, the court concludes that the Eighth Amendment
deliberate indifference standards governs plaintiffs’ claims against Christensen.
Entered this 25th day of January, 2017.
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge

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