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

Filing 238

ORDER on jury instructions. Signed by District Judge William M. Conley on 01/31/2017. Associated Cases: 3:15-cv-00428-wmc, 3:15-cv-00433-wmc (mfh)

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.

The purpose of this order is to address the parties’ objections to the court’s
proposed jury instructions.
I. Plaintiffs’ Request for Instruction on Failure to Protect
In their original submission on jury instructions, plaintiffs proposed an instruction
on failure to protect.

(Pls.’ Proposed Jury Instructions (dkt. #134) 29.)

The court

declined to do so because there appeared to be no failure to protect claim at play in this
case. Even assuming plaintiffs pleaded such a claim, or that this court were to grant
plaintiffs leave to amend at this late date, plaintiffs have failed to explain how a failure to
protect claim fits within the rubric for demonstrating municipality liability. Like other

§ 1983 claims, a failure to protect claim is premised on personal involvement. See, e.g.,
Conway v. Gamble, No. 00-C-383-C, 2000 WL 34236735, at *2 (W.D. Wis. Oct. 26,
2000) (requiring personal involvement to state a failure to protect claim).
Typically, such a claim involves either a supervisor failing to protect a plaintiff
from the actions of another official, see, e.g., Locke v. Haessig, 788 F.3d 662, 667 (7th Cir.
2015), or an officer failing to protect a plaintiff from a violent fellow inmate, see, e.g.,
Brown v. Budz, 398 F.3d 904, 909 (7th Cir. 2005). Here, however, plaintiffs’ claims
against the County necessarily involve demonstrating an unconstitutional policy, practice or
custom that caused their injuries. And, as previously explained, deliberate indifference can
constitute a “custom.”

There is no separate failure to protect claim independent of

plaintiffs’ constitutional claim asserted against the County itself.

Moreover, the

expansive instruction covers failures on the part of the County in training, supervising
and adopting appropriate policies under Monell. Plaintiffs have failed to explain what
additional, specific duties a failure to protect claim would cover, nor is this court willing
to allow some more amorphous, general duty to be the basis for plaintiffs’ recovery under
Monell.

Accordingly, the court overrules this objection to the court’s proposed

instruction.
II. Deliberate Indifference Instructions
Plaintiffs also request a change to the instruction regarding the constitutional
claim asserted against Darryl Christensen. Specifically, they ask the court to add the
following italicized language to a phrase from its deliberate indifference instruction: “that
he actually knew of a substantial risk of harm and that he consciously disregarded this
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risk by engaging in sexual contact with the inmates.” (Pls.’ Proposed Changes (dkt. #235) 1
(emphasis added).)

While the court understands plaintiffs concern that the pattern

instruction they seek to replace with the italicized language (by “failing to take
reasonable measures to deal with it”) focuses on a failure to take reasonable measures,
whereas their claim involves Christensen’s affirmative actions, the court finds that
plaintiffs’ proposed language assumes that the sexual contact posed a substantial risk of
harm to plaintiffs, which however compelling that assumption may be, remains under
current law a question for the jury. As such, the court will modify the instruction as
follows: “that he actually knew of a substantial risk of harm and that he consciously
disregarded this risk through his actions.”
As for the instruction for the constitutional claim asserted against the County, the
court’s proposed deliberate indifference instruction stated in pertinent part that “one or
more of its policy-making officials actually knew or should have known of a substantial risk
of harm.” The County objects to the italicized portion (added only for purposes of this
order), directing the court to case law holding that “should have known” is not sufficient
to state a claim for deliberate indifference. (County’s Obj. (dkt. #233) 2.) While the
court credits the County’s objection, the language -- used for a straight-up deliberate
indifference Eighth Amendment claim and not specific to a Monell claim -- does not take
into account that the notice element of a Monell claim includes constructive notice, not
just actual notice. See Cornfield by Lewis v. Consol. High Sch. Dist. No. 230, 991 F.2d 1316,
1327 (7th Cir. 1993) (“Taken together, these two considerations amount to a
requirement that liability be based on a finding that the policymakers have actual or
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constructive notice that a particular omission that is likely to result in constitutional
violations.” (emphasis added)).1
The pattern instruction itself does include a second element of a failure to train
claim asserted against a municipality that contemplates a “risk that was obvious to the
policymaker:”
2. [Official/Policymaker/Policymaking Body] knew that more
[and/or different] training was needed to avoid likely
[describe alleged constitutional violation(s)], or that this was
obvious to [Official/Policymaker/Policymaking Body];
7th Cir. Pattern Jury Instructions § 7.21 (2005 rev.). As such, the court will modify the
closing instruction, consistent with the pattern instruction, to read:
2) Policy-making official or officials were deliberately indifferent to the
need for more or different training, supervision and/or adoption of
policies to avoid likely sexual assault of an inmate by an officer, or that
this was obvious to Policy-making official or officials; and
III. Instruction on Consent
Finally, in the opening statements and through the presentation of evidence, the
parties dispute whether some or all of Christensen’s sexual contact with plaintiffs was
consensual. Based on this, the court believes that an instruction on consent would assist
the jury in deciding the ultimate liability questions. As such, the court proposes the
following instruction:
You have heard evidence and argument relevant to the question of whether
defendant Darryl Christensen sexual contacts with plaintiffs were consensual.

While

In response to the County’s objection, plaintiffs suggested that the court add: “A fact finder
may conclude that a prison official knew of a substantial risk from the very fact that the risk was
obvious.” (Pls.’ Proposed Changes (dkt. #235) 2 (citing Famer v. Brennan, 511 U.S. 825, 842
(1994)). However, Farmer was not a Monell claim.
1

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none of the elements of the claims described above expressly require you to consider
whether these sexual acts (or some of the sexual acts) were consensual or nonconsensual,
you may deem such a determination relevant to considering whether plaintiffs were
harmed by the sexual contacts. As you have heard, Wisconsin criminalizes sexual contact
between a jail employee and an inmate regardless of whether that act was consensual. As
a result, consent was not at issue in convicting Christensen of criminal acts.
If you determine that consent has a bearing on your determination of harm, you
may consider the following in deciding whether plaintiffs’ sexual contacts with defendant
Christensen were consensual:

the power disparity between prisoners and correctional

officers and how that disparity may create a coercive environment.

Ultimately, the

determination of whether there was consent, and the broader question of whether there
was harm, is for you to determine.
Entered this 31st day of January, 2017.
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge

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