L.M., S. v. Polk County Sheriff's Department et al

Filing 66

ORDER granting 45 Motion for Summary Judgment by Intervenor Wisconsin County Mutual Insurance Corp. Signed by District Judge William M. Conley on 10/25/2017. (voc)

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

S.L.C.,
Plaintiff,

OPINION AND ORDER

v.
16-cv-630-wmc
POLK COUNTY and DARRYL L.
CHRISTENSEN,
Defendants,
BRYCE W. DUNCAN, as Special Administrator
of the Estate of S.A.L.M.,
Plaintiff,
v.
16-cv-631-wmc
POLK COUNTY and DARRYL L.
CHRISTENSEN,
Defendants,
and
S.E.R,
Plaintiff,
v.
16-cv-632-wmc
POLK COUNTY and DARRYL L.
CHRISTENSEN,
Defendants.
In these three civil actions, plaintiffs assert claims against defendant Darryl L.
Christensen, a former correctional officer for Polk County, and Polk County based on
Christensen’s alleged sexual assault of plaintiffs while they were incarcerated at the Polk

County Jail. Wisconsin County Mutual Insurance Corporation (“WCMIC”) intervened,
seeking a declaration that it has no duty to defend or cover defendant Christiansen. Before
the court is WCMIC’s motion for summary judgment (‘630 dkt. #42), to which defendant
Christensen filed a response pro se (‘630 dkt. #65). While the motion was pending,
plaintiffs and WCMIC agreed to stipulate to entry of judgment in favor of WCMIC and
entry of a declaratory judgment that WCMIC has no duty to defend or indemnify
Christensen. (‘630 dkt. #60.)
The court previously granted WCMIC’s motion in two cases asserting similar
allegations against Christensen. See J.K.J. v. Polk Cty., No. 15-cv-428 (W.D. Wis. Nov. 28,
2016) (dkt. #108); M.J.J. v. Polk Cty., No. 15-cv-433 (W.D. Wis. Nov. 28, 2017) (dkt.
#109).

As the court explained, in light of the allegations in the complaint and

Christensen’s admission that his sexual contact with plaintiffs was “done solely for sexual
or other personal gratification, and not for a legitimate penological purpose,” “Christensen
acted outside the scope of his agency and WCMIC has no duty to defend or cover
Christensen.” J.K.J, No. 15-cv-428, slip. op. at *9. The court finds no reason to depart
from this conclusion and its analysis in the prior opinion.
In his pro se response, Christensen states that he is indigent and unable to pay for
an attorney to represent him and seeks representation by Attorney Sarah Mills, the
attorney who represented him in the prior cases through trial. However, Christensen does
not offer any argument to support a finding that WCMIC has a duty to pay the costs of
Mills’ (or any of the other attorney’s) representation in defending him against similar
claims in these new cases. While the court did require Attorney Mills to remain as counsel
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through trial in the prior cases (see J.K.J., No. 15-cv-438 (W.D. Wis. Jan. 13, 2017) (dkt.
#170), the court’s reasons for doing so there -- principally the confusion that Christensen’s
own counsel created as to whether he would be represented in the rapidly approaching trial
-- are not at issue in these three cases.
To the extent Christensen’s response could be viewed as a motion for appointment
for counsel, the court must also deny his request. Unlike defendants in criminal cases, civil
litigants have no constitutional or statutory right to the appointment of counsel. See, e.g.,
Ray v. Wexford Health Sources, Inc., 706 F.3d 864, 866 (7th Cir. 2013); Luttrell v. Nickel, 129
F.3d 933, 936 (7th Cir. 1997). While the court may attempt to recruit counsel where
appropriate, there is no basis to do so here in light of Christensen’s experience in the prior
lawsuits, his lack of any meaningful defense, limited participation or assets. In short, the
court does not find the difficulty of these remaining cases, whether factually, legally or
tactically, is likely to exceed Christensen’s ability to present his defense. See Pruitt v. Mote,
503 F.3d 647, 655 (7th Cir. 2007). Finding no reason to depart from its prior opinion
and order in the first two Polk Cases that coverage is unavailable to Christensen, the court
will grant WCMIC’s motion and enter an order declaring that WCMIC has no duty to
defend or cover Christensen and direct entry pursuant to Federal Rule of Civil Procedure
54(b) in its favor.
To the extent Attorneys Mills and Hall intend to withdraw based on this partial
judgment, the court advises them of their obligations to inform Christensen of this
development and otherwise cooperate fully in the orderly transfer of their representation
consistent with its ethical obligations.
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ORDER
IS IT ORDERED that:
1) Intervenor Wisconsin County Mutual Insurance Corporation’s motions for
summary judgment (‘630 dkt. #42; ‘631 dkt. #45; ‘632 dkt. #42) are
GRANTED.
2) The court declares that (a) there is no insurance coverage available to defendant
Darryl L. Chrisensen under the Public Entity Liability policy of insurance issued
by WCMIC to Polk County for the actions of Christensen as asserted by
plaintiffs in these actions; and (b) intervenor WCMIC has no duty to defend or
indemnify Christensen for any claims asserted by plaintiffs against Christensen
in these actions.
3) The clerk of court is directed to enter judgment pursuant to Federal Rule of Civil
Procedure 54(b) in favor of Wisconsin County Mutual Insurance Corporation
without costs.
Entered this 25th day of October, 2017.
BY THE COURT:

/s/
________________________________________
WILLIAM M. CONLEY
District Judge

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