Rachel Slabey v. Dunn County, Wisconsin

2023 WI 2, 983 N.W.2d 626, 405 Wis. 2d 404

Opinion

2023 WI 2

SUPREME COURT OF WISCONSIN CASE NO.: 2020AP877

COMPLETE TITLE: Rachel Slabey, Plaintiff-Appellant-Petitioner, v. Dunn County, Wisconsin, Dennis P. Smith, Brenda LaForte, Marshall L. Multhauf and Paul Gunness, Defendants-Respondents, Dunn County Sheriff's Office, Ryan Boigenzahn, John Doe One, John Doe Two and John Doe Three, Defendants, Wisconsin County Mutual Insurance Corporation, Intervenor.

REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 399 Wis. 2d 323, 964 N.W.2d 549 (year – unpublished)

OPINION FILED: January 18, 2023 SUBMITTED ON BRIEFS: ORAL ARGUMENT: October 10, 2022

SOURCE OF APPEAL: COURT: Circuit COUNTY: Dunn JUDGE: Maureen D. Boyle

JUSTICES: ZIEGLER, C.J., delivered the majority opinion of the Court, in which ROGGENSACK, REBECCA GRASSL BRADLEY, DALLET, and HAGEDORN, JJ., joined. KAROFSKY, J., filed a dissenting opinion, in which ANN WALSH BRADLEY, J., joined. NOT PARTICIPATING:

ATTORNEYS:

For the plaintiff-appellant-petitioner, there were briefs filed by Cristina M. Wirth, Martha H. Heidt, and Bye, Goff & Rohde, Ltd., River Falls. There was an oral argument by Cristina M. Wirth. For the defendants-respondents, there was a brief filed by Samuel C. Hall, Jr., Timothy M. Johnson, Molly K. Woodford, and Crivello Carlson, S.C., Eau Claire. There was an oral argument by Samuel C. Hall, Jr.

An amicus curiae brief was filed by Mark L. Thomsen, Lynn R. Laufenberg, Kimberly D. Sweatt, and Gingras, Thomsen & Wachs, LLP, Madison, and James D. Rogers and Wisconsin Association for Justice, Madison, for the Wisconsin Association for Justice.

2 2023 WI 2 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2020AP877 (L.C. No. 2017CV277)

STATE OF WISCONSIN : IN SUPREME COURT

Rachel Slabey,

Plaintiff-Appellant-Petitioner,

v.

Dunn County, Wisconsin, Dennis P. Smith, Brenda FILED LaForte, Marshall L. Multhauf and Paul Gunness,

Defendants-Respondents, JAN 18, 2023

Dunn County Sheriff's Office, Ryan Boigenzahn, Sheila T. Reiff Clerk of Supreme Court John Doe One, John Doe Two and John Doe Three,

Defendants,

Wisconsin County Mutual Insurance Corporation,

Intervenor.

ZIEGLER, C.J., delivered the majority opinion of the Court, in which ROGGENSACK, REBECCA GRASSL BRADLEY, DALLET, and HAGEDORN, JJ., joined. KAROFSKY, J., filed a dissenting opinion, in which ANN WALSH BRADLEY, J., joined.

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 ANNETTE KINGSLAND ZIEGLER, C.J. This is a review of

an unpublished decision of the court of appeals, Slabey v. Dunn County, No. 2020AP877, unpublished slip op. (Wis. Ct. App. No. 2020AP877

July 7, 2021), affirming the Dunn County circuit court's1 order

granting summary judgment in favor of Dunn County on Rachel

Slabey's claim under 42 U.S.C. § 1983. We affirm.

¶2 Slabey argues that her § 1983 claim against Dunn

County survives summary judgment because she presented evidence

sufficient for a reasonable jury to find that Dunn County2

violated her rights under the Eighth and Fourteenth Amendments

to the United States Constitution when then-Dunn County

Correctional Officer Ryan Boigenzahn sexually assaulted her.

According to Slabey, Dunn County is liable because the "County

was deliberately indifferent to a substantial risk of harm to

Slabey by failing to thoroughly investigate, appropriately

discipline, and adequately supervise Boigenzahn." Slabey argues

that the circuit court erroneously granted Dunn County summary

judgment and that the court of appeals erred in affirming that

result.

¶3 We conclude that Slabey's § 1983 claim against Dunn

County fails because, under Monell v. Department of Social Services, 436 U.S. 658 (1978), no reasonable fact finder could

conclude that Dunn County was the causal, moving force behind

the sexual assault. A § 1983 plaintiff suing a municipality for

a constitutional deprivation must prove that the municipality

caused——that is, was the moving force behind——the constitutional

1 The Honorable Maureen D. Boyle presided. 2 All references to "the County" are to Dunn County unless otherwise noted.

2 No. 2020AP877

deprivation. This requires evidence "that the municipal action

was taken with 'deliberate indifference' as to its known or

obvious consequences." Bd. of Cnty. Comm'rs of Bryan Cnty. v.

Brown, 520 U.S. 397, 407 (1997) (quoting City of Canton v.

Harris, 489 U.S. 378, 388 (1989)). Here, there is insufficient

evidence demonstrating Dunn County acted with deliberate

indifference to a known or obvious consequence that Boigenzahn

would sexually assault Slabey. The circuit court was correct to

grant Dunn County summary judgment on Slabey's § 1983

constitutional deprivation claim. We affirm the court of

appeals.

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

¶4 Ryan Boigenzahn began working as a correctional

officer ("CO") at the Dunn County Jail in April 2011. As part

of his training, Dunn County required Boigenzahn to attend the

Jail Academy at Nicolet College. There, Boigenzahn took a

month-long, 160-hour course where, according to Boigenzahn, he

learned "what it is to be a corrections officer in the state of Wisconsin." Boigenzahn was also required to participate in the

course's Prison Rape Elimination Act of 2003 ("PREA")3 training.

Boigenzahn admitted during his deposition that he "learn[ed]

through that training . . . that sexual contact between inmates

and prisoners was" prohibited by law. He passed the training

course, and he received his certification from the Law

Enforcement Standards Board in June 2012. Boigenzahn worked

3 34 U.S.C. §§ 30301-30309 (2018).

3 No. 2020AP877

third shift at the jail as a CO, which was from 10:30 p.m. to

7:00 a.m.

¶5 Dunn County also required Boigenzahn to review and

certify that he reviewed all Dunn County policies, including the

County's fraternization, sexual misconduct, and PREA policies.

Boigenzahn signed these policies, stating, "I certify that I

have read, understand, and will comply with the

policies . . . ." Dunn County's fraternization policy includes,

in relevant part:

Employees of the Dunn County Sheriff's Office shall not:

a. Have a relationship with an inmate/prisoner or the spouse of an inmate/prisoner under the supervision or custody of the Dunn County Jail, for one year after their release.

b. Have a relationship with individuals whom the employee knows is [sic] incarcerated in a state correctional facility or a county jail other than the Dunn County Jail, or under the supervision of the Wisconsin Department of Corrections (Probation/Parole), or for one year after their release.

c. Have personal contacts that are usually one-to- one such as dating, knowingly form close friendships, correspond without an exception granted or have visits that are not job related, for a period of one year after their release.

d. Accept or give gifts, provide services in exchange for work performed, for one year after their release.

e. Encourage or allow to occur, the exchange of personal or departmental information between the employee and an inmate.

4 No. 2020AP877

The sexual misconduct/PREA policy prohibits all staff, including

COs like Boigenzahn, from engaging in sexual misconduct, which

the policy defines as follows:

Sexual Misconduct is any behavior or act of a sexual nature directed toward an inmate, detainee, victim, witness, or complainant by any employee, volunteer, vendor, contractor, visitor or agency representative.

1. This includes acts or attempts to commit such acts including, but not limited to, sexual assault, sexual abuse, sexual harassment, sexual contact, conduct of a sexual nature or implication, obscenity and unreasonable or unnecessary invasion of privacy.

2. Sexual misconduct also includes, but is not limited to, conversations or correspondence that suggests a romantic or sexual relationship involving any person mentioned above.

3. Sexual misconduct is not limited to unwanted sexual contact. Sexual misconduct is also a range of behaviors or situations that include inappropriate remarks, sexualized name-calling, correspondence, conversations, inappropriate displays, fondling, inappropriate viewing, and sexual contact with individuals vulnerable to the authority of the justice system or any other person in a work setting. Such acts are inappropriate in a work setting and presumed to be unwelcome.

4. Romantic relationships between supervisors and those under their supervision are presumed to be coercive and may be deemed sexual harassment or misconduct. Dunn County's sexual misconduct/PREA policy also requires staff

to report and investigate all alleged violations:

A. Reporting Requirements

1. Any employee or staff member who knows or reasonably suspects that any employee may be or has

5 No. 2020AP877

been involved in sexual misconduct is required to inform the Jail Captain. To protect the reputations and integrity of all persons engaged in such a process, including the accuser, the accused, and the alleged victim, all such reports shall be dealt with as matters of highest discretion both before and after they have been submitted to appropriate authorities.

. . . .

4. Upon receiving a report of possible sexual misconduct or harassment, the Jail Captain shall notify the Chief Deputy. The Chief Deputy shall in turn notify the Sheriff and other Command Staff as appropriate and needed.

B. Investigation

1. All reported violations of sexual misconduct, including sexual assault and harassment, will be investigated and, as warranted, will be resolved through appropriate disciplinary processes and/or criminal proceedings in accordance with applicable state and federal laws. Dunn County requires all staff, including COs like Boigenzahn,

to regularly complete policy reviews. According to Boigenzahn's

training log, he completed at least eight reviews of the

County's fraternization, sexual misconduct, or PREA policies.

After each policy review, Boigenzahn certified that he read and

understood the policy.

¶6 On July 31, 2015, a CO informed Sergeant Michael Owens

that inmate J.W.B. expressed that staff needed to "keep a close

eye on [the] 'male COs.'" Sergeant Owens immediately began

investigating. He first interviewed J.W.B. During the

interview, J.W.B. said that she observed Boigenzahn passing

notes between inmates on July 28, 2015. Sergeant Owens also "asked her if one of [the] officers was developing a

6 No. 2020AP877

relationship with an inmate." J.W.B. said "no, nothing like

that." Sergeant Owens also reviewed surveillance footage of the

alleged incident and recorded phone conversations between the

inmates suspected of note-passing. He discovered no evidence of

misconduct and determined "[t]he allegation [was] not supported

on a factual basis." Sergeant Owens recorded the results of his

investigation in a report and, according to County policy,

forwarded that report to his supervisor.

¶7 On August 6, 2015, a different inmate, B.M., said to

Sergeant Douglas Ormson that "she actually had a lot of respect

for the staff at the Jail, except for one person who she felt

was in danger of 'crossing the line.'" Sergeant Ormson asked

B.M. who she was referring to and to elaborate. B.M. identified

Boigenzahn and said he "was too chummy with some of the

females." B.M. said she saw another inmate, A.D., "playfully

slap[] Officer Boigenzahn on the chest," and that A.D. and

Boigenzahn "talked quite a bit." Sergeant Ormson asked B.M. "if

she felt that anything else had happened." B.M. said "she didn't think so, but she felt that if there was an opportunity

where there were no cameras around she felt something might

happen." B.M. also told Sergeant Ormson how "all the females in

the Jail talk about that, and about [Boigenzahn's] willingness

to talk to them," and how Boigenzahn "maybe liked the attention

from the females." Sergeant Ormson "asked her again if she had

witnessed anything sexual or even heard any rumors about that

type of relationship," and B.M. said she hadn't "but again said her feeling was that was a possibility if things progressed." 7 No. 2020AP877

B.M. said she "knows that there is a 'bright line' that staff

aren't supposed to cross" and felt "if Officer Boigenzahn hasn't

already crossed that line that he is getting dangerously close

to doing it."

¶8 The next day, Sergeant Ormson discussed this matter

with Sergeant Owens, who stated he heard similar allegations,

and Sergeant Rachel Vold. The three decided that Sergeant Vold

would review surveillance footage to investigate the

allegations. Sergeant Vold reviewed two weeks of surveillance

footage and found two concerning instances. On July 29, 2015,

while delivering medications to inmates, Boigenzahn "playfully

reach[ed] out his foot to step on [A.D.]'s foot." On August 6,

2015, again while delivering medications, Boigenzahn "gesture[d]

with his head as if motioning someone to come in his direction,

and also with his right arm. [A.D.] then [came] running over to

him. . . . [A]s she walk[ed] away she brush[ed] him with her

hand on his shoulder/chest area." Pursuant to Dunn County

policy, Sergeant Vold forwarded this information to the Jail Captain on August 10, 2015. The Jail Captain told Sergeant Vold

to interview A.D., which she did later that day.

¶9 During that interview, Sergeant Vold informed A.D.

that "at no time should there ever be any sort of contact with

an officer, male or female, whatsoever." Sergeant Vold "went on

to ask [A.D.] if there [were] any instances where she felt

uncomfortable [because of] any male or female officer." A.D.

said that Boigenzahn made her feel uncomfortable. A.D. reported that three months prior, she and Boigenzahn "accidentally bumped 8 No. 2020AP877

hands" and that A.D. "pulled her hand back, where [Boigenzahn]

then responded that it was alright[;] he didn’t mind." A.D.

"went on to say that other female inmates . . . told her

[Boigenzahn] seems to be 'obsessed' with her and that they have

observed him standing and watching her sleep." Sergeant Vold

asked A.D. "if there were any other instances or officers that

made her feel uncomfortable, to which she responded no."

¶10 Later that same day, the Jail Captain and the Dunn

County Chief Deputy interviewed Boigenzahn regarding these

allegations. Boigenzahn initially denied passing notes between

inmates, but he admitted to doing so once the Jail Captain and

Chief Deputy reminded Boigenzahn that he could be terminated for

lying. Boigenzahn said he made a "dumb mistake passing the note

and it w[ould] not happen again." They also showed Boigenzahn

the videos of him and A.D., but he denied that there was any

inappropriate conduct. The Jail Captain and Chief Deputy

further discussed "policy violations, co-worker mistrust, and

inmates who now think there is a relationship between [A.D.] and CO Boigenzahn." Boigenzahn explained that he "tries to gain

rapport or cooperation with inmates but now sees that he needs

to be sterner."

¶11 Pursuant to Dunn County policy, the matter was then

brought to the Dunn County Sheriff. Based on the results of the

investigation, the Sheriff decided that Boigenzahn violated Dunn

County's policies which prohibited fraternization and unbecoming

conduct. The Sheriff decided to impose discipline. The available options were performance counseling, oral reprimand, 9 No. 2020AP877

written reprimand, unpaid suspension, and termination. The

Sheriff initially "was planning on terminating [Boigenzahn].

But [he thought that Boigenzahn] really had been a pretty good

jailer on a lot of other notes, . . . so the decision was made

to give him a three-day suspension and try and say wake up."

Accordingly, on August 26, 2015, Dunn County suspended

Boigenzahn for three days without pay. When communicating the

Sheriff's disciplinary decision, the Chief Deputy warned

Boigenzahn:

I expect you will take this opportunity to correct your improper conduct in the future, fully meet the duties and responsibilities required of you and observe all the rules and procedures of your job. If you fail to do so, you will subject yourself to further disciplinary action, including discharge and termination of your employment with the County. Boigenzahn returned to work on August 29, 2015. The Sheriff

also considered moving Boigenzahn to the day shift so he could

be under greater supervision because more staff worked that

shift, but the Sheriff decided against this because "it would

affect somebody on day shift that would be bumped off from that

shift and forced onto the night shift."

¶12 About nine months later, in May 2016, inmate A.D.

reported to Sergeant Vold that Boigenzahn again acted

inappropriately. She stated that Boigenzahn frequently

contacted inmate B.S. A.D. stated that on one occasion

Boigenzahn accepted a note that was sexual in nature from B.S.

Surveillance footage showed that on April 17, 2016, at 2:32 a.m., Boigenzahn spent 12 minutes out of camera view and near

10 No. 2020AP877

B.S.'s bunk. Boigenzahn later admitted that he did receive the

note from B.S. On May 19, 2016, the County placed Boigenzahn on

administrative leave, and on May 31, 2016, he was terminated.

¶13 About one month after Dunn County terminated

Boigenzahn, on June 27, 2016, inmate Slabey was heard saying,

"[Boigenzahn] must have stuck his hand down somebody else's

pants, too." According to Slabey, she said this "jokingly."

Investigator Dan Westlund, however, who was at the jail to

interview Slabey regarding an unrelated matter, overheard

Slabey's remark. He immediately reported what he heard to the

Jail Captain. Pursuant to County policy, the Jail Captain

called her supervisor, the Chief Deputy, and the matter was

reported to the Sheriff. The Sheriff requested that an outside

agency investigate Slabey's allegations. The Menomonie Police

Department then investigated the allegations against Boigenzahn.

¶14 The criminal investigation regarding Slabey's

statement revealed that on March 25, 2016, about seven months

after Boigenzahn was first disciplined by the County, he sexually assaulted Slabey. Boigenzahn entered the Huber Dorm4

and talked with Slabey and her bunkmate. Slabey was on the top

The Huber Dorm is an open area with bunk beds for inmates 4

on Huber work release. See generally Wis. Stat. § 303.08 (2019- 20).

11 No. 2020AP877

bunk in a location that was apparently out of camera view.5

According to Slabey, she "made a comment [to Boigenzahn] about

do you ever get in trouble . . . . And he's like yeah, I've

gotten in trouble before, he's like, but I can –- pretty much

saying he didn't care, you know." It is undisputed that during

this time, Boigenzahn began touching Slabey and put his hand

down her pants. Slabey told Boigenzahn, "no," and he pulled his

hand out. According to Slabey, Boigenzahn said, "you're not

going to tell on me, are you. . . . And [Slabey] told him no,

I'm not going to tell on you." Radio checks were typically

conducted after ten minutes of not hearing from a CO on rounds

and, according to Boigenzahn, he did receive a radio check the

night of the assault. There was however no radio check during

the 45 minutes Boigenzahn was with Slabey and her bunkmate.

Boigenzahn was charged and subsequently convicted and sentenced

to prison for second-degree sexual assault by correctional staff

contrary to Wis. Stat. § 940.225(2)(h) (2016-17).

¶15 Notably, it was just two days prior to the sexual assault that, pursuant to Dunn County policy, Boigenzahn had

attended a legal update session that included PREA training.

Boigenzahn admitted that, at the time of the sexual assault, he

5 According to Slabey's deposition, also on or about March 25, 2016, Slabey asked Boigenzahn "if [she] could move down to the bottom bunk . . . because it was open." Slabey claimed Boigenzahn "told [her], why would you want to move there because this one is off camera view up here, and he said that [she] couldn't move." Slabey took this to mean at the time that it would be easier for her to have contraband if she remained on the top bunk.

12 No. 2020AP877

knew it was against state law, against County policy, and

against PREA.

¶16 On November 15, 2017, Slabey commenced this action

against Dunn County under 42 U.S.C. § 1983, alleging that the

County violated her rights under the Eighth and Fourteenth

Amendments to the United States Constitution.6 Dunn County moved

for summary judgment, arguing that it was not liable under

§ 1983 because "the County did not act with deliberate

indifference to [Slabey's] safety," "there is no evidence upon

which a jury could find a Dunn County policy, custom, or

practice violated her constitutional rights," and "[Slabey's]

substantive due process rights were not violated by the County."

Slabey opposed summary judgment, arguing that there are

"sufficient facts to support a jury finding [of] deliberate

indifference" and that "Dunn County's informal custom/policy of

ignoring dangers to female inmates caused Slabey's [sexual]

assault."

¶17 The circuit court held a hearing on Dunn County's motion and subsequently issued a written decision granting Dunn

County summary judgment. The court concluded, "There is no

evidence that [Dunn County's] training practices were

In her petition for review, Slabey asserted claims against 6

not just Dunn County but also several individual defendants employed by the County. In her briefing, however, Slabey asserts claims only against Dunn County and therefore has abandoned her claims against the individual defendants. A.O. Smith Corp. v. Allstate Ins. Companies, 222 Wis. 2d 475, 492, 588 N.W.2d 285 (Ct. App. 1998) ("[A]n issue raised on appeal, but not briefed or argued, is deemed abandoned.").

13 No. 2020AP877

constitutionally deficient and that the County was aware of the

deficiency and failed to abate the deficiency."

¶18 Slabey appealed the circuit court's order. The court

of appeals affirmed, concluding there is "no evidence upon which

a reasonable fact finder could rely to conclude [Dunn County

was] deliberately indifferent to a substantial risk that

Boigenzahn would sexually assault an inmate." Slabey, No.

2020AP877, ¶1.

¶19 Slabey petitioned this court for review, which we

granted.

II. STANDARD OF REVIEW

¶20 "We independently review a grant or denial of summary

judgment, applying the same method as the circuit court."

Hoida, Inc. v. M&I Midstate Bank, 2006 WI 69, ¶15, 291

Wis. 2d 283, 717 N.W.2d 17. "While our review is independent

from the circuit court and court of appeals, we benefit from

their analyses," both of which concluded that summary judgment

is appropriate. DSG Evergreen Fam. Ltd. P'ship v. Town of Perry, 2020 WI 23, ¶15, 390 Wis. 2d 533, 939 N.W.2d 564. "We

will affirm a grant of summary judgment when there are no

genuine issues of material fact and the moving party is entitled

to judgment as a matter of law." Baumeister v. Automated

Prods., Inc., 2004 WI 148, ¶11, 277 Wis. 2d 21, 690 N.W.2d 1.

"A factual issue is 'genuine' if the evidence is such that a

reasonable jury could return a verdict in favor of the non-

moving party." Midwest Neurosciences Assocs., LLC v. Great

14 No. 2020AP877

Lakes Neurosurgical Assocs., LLC, 2018 WI 112, ¶80, 384

Wis. 2d 669, 920 N.W.2d 767.

III. ANALYSIS

¶21 The parties do not dispute that Slabey suffered a

constitutional deprivation because she was sexually assaulted by

Boigenzahn.7 The issue in this case is not whether Boigenzahn

committed a sexual assault. He did, and what he did to Slabey

was terribly wrong. But a claim against Boigenzahn is not the

claim we analyze today. Whether Dunn County is liable to Slabey

under 42 U.S.C. § 1983 is an altogether separate legal inquiry.

In analyzing that issue, we must consider the exacting standards

set forth in Monell, 436 U.S. 658. In short, Slabey asserts

that "Dunn County was deliberately indifferent to a substantial

risk of harm to Slabey by failing to thoroughly investigate,

appropriately discipline, and adequately supervise Boigenzahn."8

¶22 Because the only issue before us is whether Dunn

County is liable to Slabey under § 1983, we must analyze the

standards outlined in Monell. We begin with an overview of

7 Though the issue is not before us, for purposes of this review, we assume without deciding that Boigenzahn violated Slabey's constitutional rights. 8 Slabey raised an additional issue in her opening brief, arguing that Dunn County is not entitled to qualified immunity. However, Dunn County does not argue here that it is entitled to qualified immunity. Nor could it. It is well settled that municipalities cannot assert qualified immunity. Owen v. City of Independence, 445 U.S. 622 (1980) (holding that municipalities are not entitled to qualified immunity); see also Davis v. United States, 564 U.S. 229, 248 n.9 (2011) (recognizing the same).

15 No. 2020AP877

municipal liability under § 1983. See Monell, 436 U.S. 658.

Specifically, the causation requirement in Monell is

dispositive. We then conclude that Slabey failed to demonstrate

that Dunn County's action or inaction was the moving force

behind her constitutional deprivation. Because Slabey cannot

demonstrate the requisite causation, we need not analyze the

other criteria of a municipality's liability in a § 1983 claim

under Monell.

A. Monell Liability Generally

¶23 Unlike any liability that may exist for an individual

like Boigenzahn, in order for a municipality to be liable in a

42 U.S.C. § 1983 action, the plaintiff must demonstrate that she

can satisfy the exacting standards set forth by Monell. Under

§ 1983,

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 Monell, 436 U.S. 658, the United States Supreme Court

interpreted "person" within the meaning of § 1983 as including

local governing bodies. Monell involved public employees whose

employers "had as a matter of official policy compelled pregnant

employees to take unpaid leaves of absence before such leaves

were required for medical reasons." Id. at 660-61. The employees sued the Department of Social Services and Board of

16 No. 2020AP877

Education of the City of New York for damages under § 1983. Id.

at 660-62. The Court held that the employees could sue these

local governing units:

Congress did intend municipalities and other local government units to be included among those persons to whom § 1983 applies. Local governing bodies, therefore, can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers. Id. at 690 (footnotes and emphasis omitted).

¶24 However, the Court also explained that "Congress did

not intend municipalities to be held liable unless action

pursuant to official municipal policy of some nature caused a

constitutional tort." Id. at 691. "[A] municipality cannot be

held liable solely because it employs a tortfeasor——or, in other

words, a municipality cannot be held liable under § 1983 on a

respondeat superior theory." Id. (emphasis omitted). "Instead,

it is when execution of a government's policy or custom, whether

made by its lawmakers or by those whose edicts or acts may

fairly be said to represent official policy, inflicts the injury

that the government as an entity is responsible under § 1983."

Id. at 694. Monell and its progeny thus require a plaintiff to

satisfy each of the following to prove municipal liability under

§ 1983: (1) "identify a municipal 'policy' or 'custom' that

caused the plaintiff's injury"; (2) "the municipal action was taken with the requisite degree of culpability"; and (3) there

17 No. 2020AP877

is "a direct causal link between the municipal action and the

deprivation of federal rights." Bryan Cnty., 520 U.S. at 403-

04. Because this case is resolved on the third requirement,

causation, we need not address the first two.

B. Section 1983 Causation Under Monell.

¶25 To prevail in her claim under 42 U.S.C. § 1983 against

Dunn County, Slabey must demonstrate that the County caused her

constitutional deprivation. Slabey argues that causation is

satisfied because (1) "Dunn County failed to thoroughly

investigate claims that Boigenzahn's conduct would cross a

line"; (2) "Dunn County failed to appropriately discipline

Boigenzahn in light of the clear risk of harm that his conduct

posed to inmates generally and Rachel Slabey specifically"; and

(3) Dunn County "failed to properly supervise Boigenzahn to

prevent any further escalation of his misconduct." Slabey

argues that these acts of the County caused her constitutional

deprivation because they "caused Boigenzahn's conduct to

escalate to Slabey's assault." ¶26 "Where a plaintiff claims that the municipality has

not directly inflicted an injury, but nonetheless has caused an

employee to do so, rigorous standards of . . . causation must be

applied to ensure that the municipality is not held liable

solely for the actions of its employee." Bryan Cnty., 520 U.S.

at 405. Monell requires plaintiffs to "demonstrate a direct

causal link between the municipal action and the deprivation of

federal rights." Id. at 397. "[M]ere 'but-for' causation is insufficient." Harte v. Bd. of Comm'rs, 864 F.3d 1154, 1204 18 No. 2020AP877

(10th Cir. 2017) (quoting Bryan Cnty., 520 U.S. at 410).

Rather, a plaintiff bringing a § 1983 claim under Monell must

demonstrate that a municipality was not just a cause, but the

"moving force" behind the constitutional deprivation. Monell,

436 U.S. at 694-95.

¶27 Monell's causation requirement is a high bar for

plaintiffs to clear. "[L]esser standards . . . would require

the federal [and state] courts endlessly to 'second-guess' the

wisdom of municipal [programs], a task inappropriate for the

federal [and state] judiciar[ies]." Doe v. Taylor Indep. Sch.

Dist., 15 F.3d 443, 453 (5th Cir. 1994) (citing City of Canton,

489 U.S. at 392). The requirement is "applied with especial

rigor when the municipal policy or practice is itself not

unconstitutional, for example, when the municipal liability

claim is based upon inadequate training, supervision, and

deficiencies in hiring." Schneider v. City of Grand Junction

Police Department, 717 F.3d 760, 770 (10th Cir. 2013) (quoting

Martin A. Schwartz, Section 1983 Litigation Claims & Defenses § 7.12 (2013)). In such cases, a § 1983 plaintiff "must" prove

causation by showing "that the municipal action was taken with

'deliberate indifference' as to its known or obvious

consequences. A showing of simple or even heightened negligence

will not suffice." Bryan Cnty., 520 U.S. at 407 (citation

omitted). Evidence of a "pattern of tortious conduct" is

typically necessary to establish that the municipal action

"rather than a one-time negligent administration of the program or factors peculiar to the officer involved in a particular 19 No. 2020AP877

incident, is the 'moving force' behind the plaintiff's injury."

Id. at 407-08 (citing City of Canton, 489 U.S. at 390-91); see

also Oklahoma City v. Tuttle, 471 U.S. 808, 824 (1985) ("[W]here

the policy relied upon is not itself unconstitutional,

considerably more proof than the single incident will be

necessary in every case to establish . . . the causal connection

between the 'policy' and the constitutional deprivation.").

¶28 Slabey acknowledges that hers is a "single incident"

case because of the "absence of prior sexual assaults of female

inmates by male guards." She argues that, although the single-

incident theory governs her claim, she nonetheless prevails

under that theory because "Dunn County acted with deliberate

indifference to a significant, obvious risk of sexual violence

to all female inmates."

¶29 Though not impossible, it is exceedingly rare that a

§ 1983 plaintiff under Monell can prove causation based on a

single incident.9 The United States Supreme Court first

9This rigorous standard is what drives our analysis. Section 1983 plaintiffs suing municipalities must clear a high bar——a bar that is even higher when alleging liability based on a "single incident." For those who would relax this standard by conflating it with our standard of review on summary judgment, doing so would massively broaden the "single incident" exception and "only invite jury nullification of Monell." City of Canton v. Harris, 489 U.S. 378, 399 (1989) (O'Connor, J., concurring).

20 No. 2020AP877

recognized the possibility of such a claim in City of Canton v.

Harris, 489 U.S. 378. In City of Canton, officers failed to

seek medical attention for an arrested suspect despite the

suspect sitting on the floor of the patrol car, responding with

"an incoherent remark" when asked if she needed medical

attention, "slump[ing] to the floor on two occasions," and lying

on the floor. Id. at 381. The plaintiff argued that the

officers "were not provided with any special training (beyond

first-aid training) to make a determination as to when to summon

medical care for an injured detainee." Id. at 382. The Supreme

Court noted that a claim based on a single incident might

survive in some cases:

[I]t may happen that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need.

If this were not the well-established standard, we could instead reinvent § 1983 law and analyze how Dunn County might have merely allowed, rather than caused, Slabey's constitutional deprivation. However, that would be a sea change in the law. Causation under Monell requires much more than "but-for" causation. Bd. of Cnty. Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 404, 410 (1997) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978)). "In virtually every instance where a person has had his or her constitutional rights violated by a city employee, a § 1983 plaintiff will be able to point to something the city 'could have done' to prevent the unfortunate incident." City of Canton, 489 U.S. at 392. Whether Dunn County could have done more is not the applicable legal standard.

21 No. 2020AP877

Id. at 390. In such a situation, "the need to train . . . can

be said to be 'so obvious,' that failure to do so could properly

be characterized as 'deliberate indifference' to constitutional

rights." Id. at 390 n.10 (citation omitted). The Supreme Court

dismissed the § 1983 claim and concluded that "the evidence in

the record . . . does not meet th[is] standard of § 1983

liability." Id. at 392.

¶30 The Supreme Court again considered, but rejected, an

argument that this "single-incident" theory applied in Board of

Commissioners of Bryan County v. Brown, 520 U.S. 397. There,

the § 1983 plaintiff argued that the municipality was liable for

an officer's use of excessive force because it failed to

adequately screen the officer's background prior to hiring him,

and that such screening would have uncovered that the officer

was previously "charged with assault and battery, resisting

arrest, and public drunkenness." Id. at 412-13. The Court

reasoned, "[e]ven assuming without deciding that proof of a

single instance of inadequate screening could ever trigger municipal liability, the evidence in this case was insufficient

to support a finding that, in hiring [the officer], [the

Sheriff] disregarded a known or obvious risk of injury." Id. at

412.

¶31 The Supreme Court also considered and rejected the

single-incident theory posed in Connick v. Thompson, 563 U.S. 51

(2011). In Connick a § 1983 plaintiff sued a municipality for a

constitutional deprivation caused by a prosecutor's failure to turn over exculpatory evidence. Id. at 55-56. The Court 22 No. 2020AP877

reasoned that because prosecutors already received legal

training on the issue, the § 1983 plaintiff's constitutional

deprivation was not "so predictable that failing to train the

prosecutors amounted to conscious disregard for defendants[]."

Id. at 71 (emphasis omitted). The Court therefore concluded

that this case did not fall within the "narrow range of 'single-

incident' liability hypothesized in Canton as a possible

exception to the pattern of violations necessary to prove

deliberate indifference in § 1983 actions."10 Id. at 71-72.

¶32 The Tenth Circuit in Schneider v. City of Grand

Junction Police Department, 717 F.3d 760, similarly rejected use

of the single-incident theory in a § 1983 claim. There, an

officer sexually assaulted a 911 caller while responding to the

call. Id. at 763. The plaintiff argued that, in light of a

prior complaint against the officer, the municipality failed to

adequately investigate, discipline, and supervise the officer.

Id. at 766. The court rejected each of these claims against the

municipality. The court relied on the facts that the municipality "conducted the criminal investigation regarding the

[prior] complaint," and it "disciplined [the officer] with a pay

cut and probation" along with a "notice of discipline [informing

10In each of these cases where the Supreme Court hypothesized that single-incident theory could apply, the plaintiffs brought failure-to-train claims, and the Court considered the possibility that the theory might apply only in such cases. We note that Slabey's claim is based on alleged failures to investigate, discipline, and supervise Boigenzahn, but not a failure to train him.

23 No. 2020AP877

the officer] that his conduct was unacceptable." Id. at 775,

777. As for the failure-to-supervise claim, the court found "no

evidence that additional controls or sanctions . . . would have

had any more deterrent effect than the already-present threats

of discharge and criminal punishment." Id. at 780.

¶33 Similarly, the First Circuit in Santiago v. Fenton,

891 F.2d 373, 382 (1st Cir. 1989), rejected a § 1983 claim that

was based on a single incident. The officer in Santiago used

excessive force against the plaintiff, who argued the

municipality failed to discipline the officer for an earlier

incident. Id. The court nonetheless concluded that the

municipality was entitled to summary judgment on the failure-to-

discipline claim and stated:

The city and the department undisputedly had a policy of investigating complaints that expressly included the disciplining of officers in appropriate circumstances. In both of these instances the department conducted an investigation and hearing but decided that discipline was not appropriate. As we have indicated before, we cannot hold that the failure of a police department to discipline in a specific instance is an adequate basis for municipal liability under Monell. Id.

¶34 Slabey places great reliance on the Seventh Circuit's

decision in J.K.J. v. Polk County, 960 F.3d 367 (7th Cir. 2020)

(en banc), where a § 1983 plaintiff succeeded on the single-

incident theory.11 In J.K.J., the Seventh Circuit concluded that

Four judges on the en banc panel dissented: 11 Circuit Judges Easterbrook, Brennan, Bauer, and Sykes.

24 No. 2020AP877

Polk County, Wisconsin, acted with deliberate indifference "in

the face of an obvious and known risk that its male guards would

sexually assault female inmates." Id. at 381 (emphasis

omitted). That case involved two inmates at the Polk County

Jail who "endured repeated sexual assaults at the hands of [a]

correctional officer." Id. at 370.

¶35 When Polk County had earlier learned of similar

allegations against a different guard, it "imposed minor

discipline on the guard but from there took no institutional

response——no review of its policy, no training for guards, no

communication with inmates on how to report such abuse, no

nothing." Id. at 370-71. The jail's Captain "knew of sexual

comments male guards made about female inmates" and "admitted to

himself participating in [it]." Id. at 382. The Captain also

knew that an officer's conduct "began with watching [the inmate]

shower, grew to requests to expose her body for him, and in time

intensified to forcibly touching her in a sexual manner——all the

while ordering her to 'keep quiet.'" Id. Importantly, "with red lights flashing, Polk County chose the one unavailable

option——doing nothing. It did not change its sexual abuse

policy, institute a training, inquire of female inmates, or even

call a staff meeting." Id. at 383. Although Polk County did

investigate and reprimand a guard for inappropriate sexual

behavior, jail officials assured him that it was "not a big

deal." Id.

¶36 Unlike Polk County, this record reflects that Dunn County in fact required significant, relevant training of its 25 No. 2020AP877

officers and took nearly immediate action upon a complaint of

noncompliant conduct. Dunn County thoroughly investigated the

August 2015 complaint and acted in a timely manner to impose

unpaid leave on the officer. Boigenzahn was sternly warned for

the policy violations, which were passing notes between inmates

and non-sexual physical contact with an inmate. He was warned

that his behavior would not be tolerated and that he could be

terminated. Leave without pay was one of the most severe

options of discipline, just short of termination. When

Boigenzahn returned to duty, he was required to continue

training and monthly policy reviews.

¶37 Nine months had gone by with Boigenzahn working as a

CO, and there was no indication of his noncompliance. The very

next time the County learned that Boigenzahn was noncompliant

because he had received a note from an inmate, he was

terminated. In fact, unlike the facts in Polk County, Dunn

County first gained knowledge of this off-camera sexual assault

only after the County had already terminated Boigenzahn. ¶38 Slabey argues Dunn County acted with deliberate

indifference to a known or obvious consequence that Boigenzahn

would sexually assault an inmate when it "failed to thoroughly

investigate claims that Boigenzahn's conduct would cross a

line," "failed to appropriately discipline Boigenzahn in light

of the clear risk of harm that his conduct posed to inmates

generally and Rachel Slabey specifically," and when it "failed

to properly supervise Boigenzahn to prevent any further escalation of his misconduct." However, this allegation in the 26 No. 2020AP877

August 2015 complaint was thoroughly investigated. The County

officials reviewed two weeks of surveillance video, interviewed

inmates, and concluded that Boigenzahn committed a serious

violation of County policy. The evidence demonstrated that

Boigenzahn passed notes between inmates and had inmate non-

sexual contact. The County acted within a month from allegation

to discipline. The matter did not languish. Despite several

less severe options, Boigenzahn was suspended for three days

without pay and sternly warned, "If you fail to [correct your

improper conduct], you will subject yourself to further

disciplinary action, including discharge and termination of your

employment with the County." He was also given additional PREA

training two days before the assault. For about nine months

after Boigenzahn returned, Dunn County had no reason to believe

he was noncompliant.

¶39 Nonetheless, Slabey argues that the County should have

done more and, because it did not, it caused her constitutional

deprivation. In other words, she argues that the County's deliberate indifference "caused Boigenzahn's conduct to escalate

to Slabey's assault." However, Slabey offers insufficient

evidence of how the County was deliberately indifferent given

its policies, training, investigation, discipline, and

additional stern warning of termination for conduct quite unlike

a sexual assault. According to Slabey, the only way to

safeguard against the wrong that was done to her would be that

the County should have terminated Boigenzahn, constantly supervised him, or not allowed him to have any contact with 27 No. 2020AP877

female inmates.12 However, the record reflects that three COs

worked the night shift, with two splitting up to do rounds in

different parts of the Jail and the third staying in the central

office.13 Additionally, staffing restrictions prevented the

County from moving Boigenzahn off the night shift. In other

words, constant supervision or moving Boigenzahn were unworkable

options given Dunn County's Jail; therefore, the only acceptable

option in hindsight would have been to terminate Boigenzahn for

passing notes and nonsexual conduct. Accepting Slabey's

arguments would make the County liable on a respondeat superior

theory, a result the Supreme Court has explicitly rejected.

Monell, 436 U.S. at 691.

¶40 In short, Dunn County is entitled to summary judgment

because there is insufficient evidence for a reasonable fact

finder to conclude that Dunn County was the moving force behind

her being sexually assaulted. Boigenzahn sexually assaulting

Slabey was the result of his action, which was completely

forbidden by Dunn County and the criminal law. It is hindsight

12Slabey also identifies the County's failure to conduct a radio check during the 45 minutes that Boigenzahn was with Slabey, and its failure to make sure Slabey's bunk was in view of a surveillance camera as acts of deliberate indifference. However, these demonstrate the kind of "one-time negligent administration of [a] program" that is insufficient to satisfy Monell causation. Bryan Cnty., 520 U.S. at 408. 13 The Jail Captain testified in her deposition that typically three COs worked the night shift, and that one of them stayed in the central office at all times. Boigenzahn testified in his deposition that two COs "split up" to do facility-wide checks.

28 No. 2020AP877

alone that underlies Slabey's causation theory. Causation in

the context of a § 1983 claim requires much more. "[L]esser

standards . . . would require the federal [and state] courts

endlessly to 'second-guess' the wisdom of municipal [programs],

a task inappropriate for the federal [and state] judiciar[ies]."

Doe, 15 F.3d at 453 (citing City of Canton, 489 U.S. at 392).

Taken together, these facts do not demonstrate that the known or

obvious consequence of the County's action or inaction was that

Boigenzahn would sexually assault an inmate.

¶41 Overall, Slabey's allegations do not rise to the level

of a cognizable § 1983 claim against Dunn County. Just because

the County could have, in hindsight, done some things

differently, does not mean that the County was the moving force

behind the assault. Section 1983 "does not provide plaintiffs

or courts carte blanche to micromanage local governments

throughout the United States." Connick, 563 U.S. at 68. The

standards of a § 1983 claim under Monell are exacting. Slabey's

claim does not survive that scrutiny. IV. CONCLUSION

¶42 Slabey argues that her 42 U.S.C. § 1983 claim against

Dunn County survives summary judgment because she presented

evidence sufficient for a reasonable jury to find that Dunn

County violated her rights under the Eighth and Fourteenth

Amendments to the United States Constitution when Boigenzahn

sexually assaulted her. According to Slabey, Dunn County is

liable because the "County was deliberately indifferent to a substantial risk of harm to Slabey by failing to thoroughly 29 No. 2020AP877

investigate, appropriately discipline, and adequately supervise

Boigenzahn." Slabey argues that the circuit court erroneously

granted Dunn County summary judgment, and that the court of

appeals erred in affirming that result.

¶43 We conclude that Slabey's § 1983 claim against Dunn

County fails because, under Monell, no reasonable fact finder

could conclude that Dunn County was the causal, moving force

behind the sexual assault. A § 1983 plaintiff suing a

municipality for a constitutional deprivation must prove that

the municipality caused——that is, was the moving force behind——

the constitutional deprivation. This requires evidence "that

the municipal action was taken with 'deliberate indifference' as

to its known or obvious consequences." Bryan Cnty., 520 U.S. at

407 (quoting City of Canton, 489 U.S. at 388). Here, there is

insufficient evidence that Dunn County acted with deliberate

indifference to a known or obvious consequence that Boigenzahn

would sexually assault Slabey. The circuit court was correct to

grant Dunn County summary judgment on Slabey's § 1983 constitutional deprivation claim. We affirm the court of

appeals.

By the Court.—The decision of the court of appeals is

affirmed.

30 No. 2020AP877.jjk

¶44 JILL J. KAROFSKY, J. (dissenting). "The confinement

setting is a tinderbox for sexual abuse." J.K.J. v. Polk Cnty.,

960 F.3d 367, 381 (7th Cir. 2020).

¶45 While women are vulnerable almost everywhere in our

society, they are especially at risk in correctional settings

where an estimated 25 to 41 percent of incarcerated women are

sexually abused. Hannah Brenner et al., Bars to Justice: The

Impact of Rape Myths on Women in Prison, 17 Geo. J. Gender & L.

521, 537-38 (2016). In such settings female prisoners are

dependent on guards (who are disproportionately male) for their

very existence. This includes "their safety as well as their

access to food, medical care, recreation and even contact with

family members." J.K.J., 960 F.3d at 381. Due to the

imbalances of power, the correctional context is ripe for abuse

as "[p]rison rape represents the intersection of masculine

elitism and deprivations of civil rights." Maureen Brocco,

Facing the Facts: The Guarantee Against Cruel and Unusual

Punishment in Light of PLRA, Iqbal, and PREA, 16 J. Gender Race & Just. 917, 917 (2013). Sexual abuse is about power and

control and "this psychosocial dynamic is amplified in the

prison context." Id.

¶46 Victims of sexual abuse often confront profound

physical, social, and psychological effects. These effects can

be debilitating and overwhelming, and they are magnified in

confinement settings. "Victims often endure great physical pain

and sustain various injuries. Moreover, any episode of sexual assault could ultimately prove deadly since incarcerated victims

1 No. 2020AP877.jjk

are at an increased risk of contracting sexually transmitted and

other communicable diseases such as HIV, AIDS, tuberculosis, and

hepatitis B and C." Kevin R. Corlew, Congress Attempts to Shine

a Light on a Dark Problem: An In-Depth Look at the Prison Rape

Elimination Act of 2003, 33 Am. J. Crim. L. 157, 160 (2006).

¶47 To combat the scourge of sexual assaults in the

confinement setting, Congress passed the Prison Rape Elimination

Act (PREA) in 2003. But the enactment of a law aimed at

stopping prison rapes does not in and of itself put an end to

sexual violence. Prisons and jails must take steps to prevent

and detect sexual misconduct. And important to this case, when

sexual abuse does occur, it is incumbent on the judicial system

to hold to account those who are responsible in order to protect

vulnerable inmates. It is here where the majority falls short.

In wrongly concluding that the circuit court's grant of summary

judgment for Dunn County should be upheld, the majority allows

the county to escape all responsibility for (1) ignoring clear

warning signs that former Dunn County correctional officer Ryan Boigenzahn had engaged in inappropriate and escalating behavior

with female inmates, and (2) creating the circumstances that

allowed Boigenzahn to sexually assault Rachel Slabey while she

was incarcerated in the Dunn County Jail.

2 No. 2020AP877.jjk

I. BACKGROUND

¶48 Boigenzahn sexually assaulted Slabey1 while she was in

her bunk in the Dunn County Jail on March 25, 2016.2 It was the

middle of the night in the Huber Dorm.3 Boigenzahn was tasked

with checking the women's dorm despite his recent suspension for

violating the jail's fraternization policy. Boigenzahn surveyed

the women's dorm alone, unmonitored, and entirely unsupervised.

That night, Boigenzahn spent 45 minutes in Slabey's dorm, an

extraordinarily long time compared to the few seconds that

guards usually took to check the dorm during the night. And

although the Dunn County Jail practice is for the central office

of the jail to conduct radio checks when an officer fails to

report back to the central office after 10 minutes, no

supervisor checked in on Boigenzahn during the 45 minutes he was

in the dorm, despite his known history of fraternization. By

1 Normally, to protect the dignity and privacy of Slabey, a victim of sexual assault, I would use initials or pseudonyms to identify her. However, because Slabey filed this lawsuit using her real name, I do not follow that practice for her here. To protect the dignity and privacy of other inmates, who were witnesses or victims of Boigenzahn, I use initials. 2 Mindful that this is a summary judgment review, I will set out the factual background necessary to understanding this case by presenting Slabey's evidence as true while drawing all reasonable inferences in her favor, as the court must when reviewing a summary judgment decision. See Burbank Grease Servs., LLC v. Sokolowski, 2006 WI 103, ¶40, 294 Wis. 2d 274, 717 N.W.2d 781. 3 A Huber facility is a county correctional facility that houses inmates who have been granted leave privileges (typically work release) under Wis. Stat. § 303.08(1). See Wis. Stat. § 303.09.

3 No. 2020AP877.jjk

all accounts, no one was monitoring Boigenzahn as he abandoned

his duties to prowl around Slabey's dorm.

¶49 The jail assigned Slabey to the only bunk in the dorm

that was entirely unmonitored by security cameras, a fact both

Boigenzahn and Slabey knew. Boigenzahn himself previously

denied Slabey's request to be moved to a different bunk.

Additionally, the jail recently transferred Slabey from

administrative segregation, causing her concern that if she did

anything to "make a scene" or displease Boigenzahn, she would be

transferred back. And, unsurprisingly, Slabey did not think

that anyone would believe her or protect her if she spoke up and

complained about Boigenzahn. In a word, Slabey was vulnerable.

¶50 Armed with the knowledge of his victim's

vulnerabilities, Boigenzahn entered the Huber Dorm, found Slabey

and her bunkmate, D.S., and began talking with them. One of the

topics of conversation was Boigenzahn's reputation for spending

an inappropriate amount of time with female inmates. Slabey

"made a comment [to Boigenzahn] about do you ever get in trouble . . . . And [Boigenzahn was] like yeah, I've gotten in trouble

before, he's like, but I can——pretty much saying he didn't care,

you know." As he was talking to the inmates, Boigenzahn began

touching Slabey, first by rubbing her hand. Slabey tried to

protect herself by moving away and lying down, but Boigenzahn

persisted. He went after her, grabbing her pants, then her leg,

then Boigenzahn shoved his hand down Slabey's pants and inside

her underwear.

4 No. 2020AP877.jjk

¶51 While Boigenzahn was sexually assaulting her, Slabey,

now completely defenseless, went silent. She did not want to

call attention to his actions "because it was so quiet in there"

and she "didn't want to have a scene or have him say something

like, oh, [she] did something and put [her] back in

[segregation]." During the sexual assault, Slabey felt

"confused," "in shock" and "didn't know what to do." After

sexually assaulting her, Boigenzahn asked Slabey if she would

tell anyone. Slabey told him no, and soon after, Boigenzahn

left the Huber Dorm.

¶52 This sexual assault did not occur without warning. It

was not a freak occurrence, a force majeure that could have

neither been foreseen nor prevented. Instead, sheriff's

department officials——importantly here, the Sheriff himself——

first ignored the clear warning signs that Boigenzahn had

already engaged in inappropriate and escalating behavior with

female inmates, and then created the circumstances that allowed

Boigenzahn to sexually assault Slabey. ¶53 Prior to the sexual assault, the Sheriff had ample

warning that Boigenzahn was, in the words of one inmate,

"dangerously close to crossing the line." Sheriff's department

officials were first alerted to Boigenzahn's conduct in July

2015, about eight months before the sexual assault. Inmate

J.W.B. informed a correctional officer, and subsequently a jail

sergeant, that officials needed to "keep a close eye on" the

5 No. 2020AP877.jjk

male correctional staff.4 When asked for an example, J.W.B.

explained that on two separate occasions, an officer passed

notes between female and male inmates. J.W.B. originally

refused to identify the officer in question for fear of

retaliation, but upon further questioning, she identified

Boigenzahn. Passing notes was a violation of the Dunn County

Jail's fraternization policy, one that historically resulted in

suspension or termination. Despite the seriousness of the

allegations, the sergeant only reviewed surveillance video for

one of the two instances J.W.B. reported, and he failed to

question Boigenzahn or the inmates directly. After this cursory

investigation, the sergeant concluded that there was no factual

basis for J.W.B's claims.

¶54 About one week later, another inmate, B.M., told a

different sergeant that Boigenzahn was dangerously close to

"crossing the line," and that he had been getting "too chummy"

with some of the female inmates. B.M. said that she had not yet

witnessed anything sexual, but she believed "that was a possibility if things progressed." As an example, she told this

4When questioned whether her concerns were "in regards to fraternization," J.W.B. indicated that she did not understand what fraternization meant. The sergeant then asked whether the officer "was developing a relationship with an inmate." J.W.B. answered in the negative, but there was no additional explanation of what the sergeant meant by "relationship" in that context nor any additional attempt to understand what J.W.B. understood "relationship" to mean. This exchange illustrates how important it is to ensure that female inmates (as well as guards) understand "what abuse entails," particularly since "they may come from life experiences that have blurred the lines of abnormal and normal relationships." J.K.J. v. Polk Cnty., 960 F.3d 367, 375 (7th Cir. 2020).

6 No. 2020AP877.jjk

sergeant that Boigenzahn had been talking with another inmate,

A.D., when A.D. playfully slapped Boigenzahn on the chest. B.M.

said that if there was an opportunity when there were no cameras

around, "something might happen," and "all the females in the

Jail talk about that." If Boigenzahn hadn't already crossed the

"bright line" that staff are not supposed to cross, B.M. said,

"he [was] getting dangerously close to doing it."

¶55 In response to the above reports, sheriff's department

officials reviewed surveillance footage and found two incidents

that corroborated B.M.'s concerns. First, on July 29,

Boigenzahn entered the Huber Dorm, stepped out of camera range

for a few minutes, then stepped back into view when another

officer entered the room. While the other officer was handing

out breakfast, Boigenzahn reached out and "playfully" stepped on

A.D.'s foot. She then stepped back on his foot. Second, on

August 6, Boigenzahn entered the dorm and shut the door behind

him. He gestured "as if motioning someone to come in his

direction," at which point A.D. ran over to him and "brush[ed] him with her hand on his shoulder/chest area."

¶56 Sheriff's department officials then questioned A.D.,

asking her whether any officer ever made her feel uncomfortable.

A.D. "immediately" informed the officials that Boigenzahn made

her feel uncomfortable and provided the following three

examples. First, she described an instance where her hand and

Boigenzahn's hands accidentally touched. She pulled her hand

away and apologized, but he responded that "it was alright, he didn't mind." Second, other inmates told her that Boigenzahn

7 No. 2020AP877.jjk

seemed to be "obsessed" with her, and they observed him standing

and watching her sleep. Third, she explained that he just

"lingered too long" around her. Like J.W.B., A.D. explained

that she did not report Boigenzahn sooner because she was afraid

of retaliation. In response to A.D.'s statements, the sergeant

pressed A.D. and asked "if there had ever been anything more

than statements made or him watching her." In doing so, the

sergeant seemingly dismissed A.D.'s claim that Boigenzahn was

obsessed with her, watched her sleep, and lingered too long

around her, as if that information alone were unimportant to the

investigation.

¶57 Sheriff's department officials then met with

Boigenzahn and questioned him about the inmates' allegations.

Boigenzahn initially lied to the officials and denied passing

notes between inmates, only confessing after he learned that he

would be terminated if he were not truthful. He denied that he

acted inappropriately toward A.D., which officials also found to

be false. ¶58 Despite knowing that Boigenzahn had, at the very

least, violated the jail's fraternization policy and attempted

to conceal and lie about his violations, the Sheriff decided

against terminating Boigenzahn. The Sheriff made this choice

despite the fact that violations of the fraternization policy

"historically" resulted in termination, and despite the fact

that Boigenzahn's lying, in and of itself, was grounds for

termination. The Sheriff opted instead for a far more lenient response and suspended Boigenzahn for three days before allowing

8 No. 2020AP877.jjk

him to return to work——in the same position——where he continued

to have unfettered access to vulnerable women inmates. The

Sheriff did not put Boigenzahn on a different shift, one where

more staffing would allow for more supervision. He did not

assign Boigenzahn to a different section, away from female

inmates. He did not bar Boigenzahn from having further

unsupervised contact with female inmates; in fact, he did not

assign any staff to further monitor or investigate Boigenzahn at

all. Instead, the Sheriff sent an officer who violated jail

policies, lied to officials, and raised such serious red flags

that multiple inmates reported him despite fears of retaliation,

back to guard female inmates on the lightest-staffed shift with

little to no monitoring. And that is how former officer

Boigenzahn accessed, cornered, and sexually assaulted, Slabey on

March 25, 2016.

II. ANALYSIS

¶59 When Dunn County took Slabey into custody, it assumed

an affirmative duty to protect her from harm. DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 199-200

(1989) ("When the State takes a person into its custody and

holds [her] there against [her] will, the Constitution imposes

upon it a corresponding duty to assume some responsibility for

[her] safety and general well-being."). Sexual assault is one

of those harms, for while the Eighth Amendment "does not mandate

comfortable prisons," sexual assault "is simply not part of the

penalty that criminal offenders pay for their offenses against society." See Farmer v. Brennan, 511 U.S. 825, 832-834 (1994)

9 No. 2020AP877.jjk

(internal citations omitted). Sexual offenses "tend . . . to

cause significant distress and often lasting psychological

harm," Washington v. Hively, 695 F.3d 641, 643 (7th Cir. 2012),

and there is little doubt that Slabey's Eighth Amendment rights

were violated when Boigenzahn sexually assaulted her. The only

question here is whether Slabey may hold Dunn County accountable

under 42 U.S.C. § 1983, which "plainly imposes liability on a

government that, under color of some official policy, 'causes'

an employee to violate another's constitutional rights." See

Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S.

658, 692 (1978).

¶60 While the standards for establishing municipal

liability under § 1983 are rigorous, "they are not

insurmountable." J.K.J., 930 F.3d at 378. In order to

establish liability and survive summary judgment on her claim

against Dunn County, Slabey must bring sufficient evidence for a

jury to reasonably find that Dunn County (1) had an official

policy, custom, or decision, (2) that demonstrated the requisite level of culpability, and (3) caused her injury. See Bd. of

Cnty. Comm'rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 403-

404 (1997). I will discuss each of these elements in turn

before explaining why a jury could reasonably find for Slabey on

each.

¶61 First, Slabey must identify an official Dunn County

policy or custom that caused her injury. Monell, 436 U.S. at

690. The Supreme Court has recognized that a decision by an official with final policy-making authority meets this

10 No. 2020AP877.jjk

requirement——that is, municipal liability attaches when "a

deliberate choice to follow a course of action is made from

among various alternatives by the official or officials

responsible for establishing final policy with respect to the

subject matter in question." Pembaur v. City of Cincinnati, 475

U.S. 469, 483 (1986). Inaction, as well as action, may serve as

the basis for municipal liability, depending on the

circumstances. Connick v. Thompson, 563 U.S. 51, 61-62 (2011)

("[a] policy of inaction in light of notice that its program

will cause constitutional violations is the functional

equivalent of a decision by the city itself to violate the

Constitution." (internal citations omitted)).

¶62 Second, Slabey must establish Dunn County's

culpability, which under Monell means that she must provide

sufficient evidence for a jury to find that the county's actions

demonstrated a "deliberate indifference" to the "known or

obvious" consequence that a constitutional violation would

occur. Bryan Cnty., 520 U.S. at 407. While a pattern of constitutional violations is "ordinarily necessary" to establish

the requisite notice that an official course of conduct is

inadequate, the risk of a constitutional violation may be so

obvious that the municipality's actions could demonstrate

deliberate indifference to that risk. See Connick, 563 U.S. at

64. The Supreme Court in City of Canton v. Harris provided the

following example of deliberate indifference: if city policy-

makers, having armed their police officers with firearms, fail to train those officers on the constitutional limitations on

11 No. 2020AP877.jjk

deadly force, that failure could be characterized as deliberate

indifference. City of Canton, Ohio v. Harris, 489 U.S. 378, 390

n. 10 (1989). The Seventh Circuit in Glisson v. Indiana

Department of Corrections provided another example: the failure

to establish coordinated care protocols for inmates with chronic

illnesses could reflect deliberate indifference if a jury found

the need for those protocols obvious, even absent prior

constitutional violations. Glisson v. Ind. Dep't of Corr., 849

F.3d 372, 382 (7th Cir. 2017). And in J.K.J. v. Polk County the

Seventh Circuit provided another, one relevant to this case: the

failure to institute more robust policies to prevent the sexual

assault of female inmates in the face of a guard's escalating

behavior can demonstrate deliberate indifference to the known or

obvious risk of sexual assault. J.K.J., 960 F.3d at 385.

¶63 Third, Slabey must establish sufficient evidence for a

jury to find that Dunn County's actions caused her injury. That

is, the official actions must be the "moving force" behind the

constitutional violation. Bryan Cnty., 520 U.S. at 400 (1997). A municipality cannot be held vicariously liable for the actions

of its employee solely because it employed that employee.

Monell, 436 U.S. at 691. Instead, the plaintiff must

"demonstrate a direct causal link between the municipal action

and the deprivation of federal rights." Bryan Cnty., 520 U.S.

at 404.

¶64 Slabey established sufficient evidence for a jury to

find for her on each of these three requirements by: (1) identifying a course of action by a final policy-maker——namely,

12 No. 2020AP877.jjk

the Sheriff's choice to return Boigenzahn to his standard shift

with no additional supervision; (2) alleging sufficient evidence

for a jury to conclude that the risk of sexual assault was so

predictable that the Sheriff's course of action constituted

deliberate indifference; and (3) alleging sufficient evidence to

show that the Sheriff's course of action caused the sexual

assault. Her § 1983 claim against Dunn County should therefore

survive summary judgment. I address how Slabey met each

requirement in more detail below.

A. Official Policy, Custom, or Decision

¶65 Slabey met the first requirement for municipal

liability under § 1983 because she identified a "deliberate

choice to follow a course of action" by a final policy-maker.

See Pembaur, 475 U.S. at 483. As Slabey points out, and Dunn

County does not dispute, the Sheriff was the final policy-maker

for staffing and disciplinary decisions at the Dunn County Jail.

And he, as that final policy-maker, deliberately chose to adopt

a particular course of action——to retain Boigenzahn and send him back to guard female inmates alone, on the lightest-staffed

shift, with no additional supervision, investigation, or follow-

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up.5 The Sheriff had "various alternatives" to his course of

action. See Pembaur, 475 U.S. at 483. One of those

alternatives was to terminate Boigenzahn. Termination was not

just an option, but (as the Sheriff acknowledged), the typical

disciplinary response for violations of the fraternization

policy. Another alternative was to adjust Boigenzahn's schedule

to accommodate increased supervision and monitoring of his

behavior. The Sheriff considered these alternatives, but

instead chose the one course of action that would allow

Boigenzahn to spend significant time alone and unmonitored with

female inmates.

¶66 Slabey may not have identified a written policy that

caused her injury, but she does not need to. Monell liability

attaches where "a deliberate choice to follow a course of action

Because Slabey focused on this particular course of 5

action, this dissent will too. However, I note that in similar cases, plaintiffs have presented expert testimony identifying a variety of additional measures that jails must take to protect female inmates from sexual assaults. These measures include "informing guards of the inherent vulnerability the confinement setting presents to female inmates, educating jailers on the symptoms of an inmate suffering from the trauma of abuse, requiring officers to report each other's misconduct, or taking any time to otherwise instruct guards on matters of prevention and detection." J.K.J., 960 F.3d 367 at 379. Prevention and detection measures also include: a designated PREA coordinator, staff training on what to look for and how to report abuse as well as how to make inmates feel comfortable coming forward, taking additional care with job assignments within facilities, ensuring that all inmates understand their right to be free from sexual abuse and harassment as well as making sure inmates understand what abuse entails, and a confidential way for inmates to report abuse. Id. at 375. An additional, vital, and seemingly obvious prevention measure is not allowing male guards to be alone and unmonitored with female prisoners. Cash v. Cnty. of Erie, 654 F.3d 324, 331 (2d Cir. 2011).

14 No. 2020AP877.jjk

is made among various alternatives by the official or officials

responsible for establishing final policy with respect to the

subject matter in question." Pembaur, 475 U.S. at 483. Slabey

sufficiently identified that deliberate choice here.

B. Culpability

¶67 Slabey also met the culpability requirement because

she presented enough evidence for a jury to reasonably find that

the Sheriff's official course of action was taken with

deliberate indifference to the known or obvious risk that a

sexual assault would occur. Whether the risks were known or

obvious and whether the Sheriff acted with deliberate

indifference are questions of fact. See Sherrod v. Lingle, 223

F.3d 605, 611 (7th Cir. 2000). Next I demonstrate how a jury,

assessing the facts of this case, could reasonably conclude

that: (1) Boigenzahn’s prior behavior created a known or obvious

risk that he would sexually assault an inmate and (2) the

Sheriff's decision to send Boigenzahn back to guard female

inmates reflected deliberate indifference to that risk. 1. Known or Obvious Risk of Sexual Assault

¶68 When evaluating Boigenzahn's prior conduct to

determine whether the risk of sexual assault was known or

obvious, it is important to note that "consent is not an issue"

when a correctional officer has "sexual contact or sexual

intercourse with an individual who is confined in a correctional

institution if the actor is a correctional staff member." Wis.

Stat. §§ 940.225(2)(h), 940.225(4). In enacting Wis. Stat. § 940.225(2)(h), the legislature barred consent from being a

15 No. 2020AP877.jjk

defense in this context because it recognized that the power

imbalance between correctional staff and inmates in the

confinement setting, coupled with restrictions on inmates'

freedom, make it impossible for inmates to freely consent.

Because an inmate cannot consent to sexual conduct with a

correctional staff member, an inmate's "words or overt actions

that might indicate a freely given agreement to have sexual

intercourse or sexual contact" in the outside world are

irrelevant in this instance. See Wis. Stat. § 940.225(4).

Accordingly, the deliberate indifference inquiry must be viewed

through the correct lens of the confinement setting. And

through this lens, conduct that merely foreshadows consensual

sexual contact in other contexts may serve as notice of an

obvious risk of sexual assault in the confinement setting. See

Cash v. Cnty. of Erie, 654 F.3d 324, 337 (2d Cir. 2011) (noting

that because (like Wisconsin) New York state law did not

tolerate any sexual contact between guards and prisoners, jail

officials "were thus obligated to do the same in carrying out their affirmative duty to protect prisoners from harm.").

¶69 A jury aware of the distinctive nature of sexual abuse

in the correctional setting could, based on Slabey's evidence

and reasonable inferences drawn from that evidence, make three

factual findings: (1) Boigenzahn engaged in inappropriate

behavior with female inmates, based on the corroborated reports

of three different inmates; (2) Boigenzahn's behavior,

particularly with A.D., was not just inappropriate, but sexually charged; and (3) Boigenzahn had a propensity to lie and conceal

16 No. 2020AP877.jjk

inappropriate behavior unless directly confronted, and sheriff's

department officials knew about this propensity. Based on these

findings, a jury could reasonably conclude that the Sheriff had

notice that Boigenzahn was engaging in a pattern of escalating

and inappropriate behavior toward female inmates——including

physical conduct——that was likely to lead to sexual assault. I

will address each of the potential factual findings in turn.

¶70 First, based on the corroborated reports of three

different inmates, a jury could find that Boigenzahn engaged in

inappropriate behavior with female inmates, some of which was

physical in nature. Two of those inmates warned sheriff's

department officials that the behavior was likely to escalate,

or "cross the line" if it had not already. One of the inmates,

A.D., reported that Boigenzahn "made her uncomfortable," told

her that "he didn't mind" when their hands accidentally touched,

and, according to other inmates, even watched her while she

slept. Additionally, Sheriff's department officials viewed

video surveillance of Boigenzahn which corroborated some of the inmates' reports.

¶71 Second, a jury could reasonably infer that

Boigenzahn's behavior, particularly with A.D., was not only

inappropriate, but sexually charged. Just because a

municipality labels behaviors as "fraternization" instead of

sexual misconduct does not mean that the majority should defer

to that characterization, or assume that a jury must. As Dunn

County's own sexual misconduct policy acknowledges, sexual conduct encompasses a "range of behaviors," including, for

17 No. 2020AP877.jjk

example, "conduct of a sexual nature or implication" and

"unreasonable or unnecessary invasion of privacy." A jury could

reasonably conclude that Boigenzahn's physical conduct with A.D.

was "conduct of a sexual implication." A jury could also

reasonably conclude that "obsessing" over an inmate and watching

her sleep is an "unreasonable or unnecessary invasion of

privacy."

¶72 The majority errs when it dismisses Boigenzahn's prior

behaviors and mischaracterizes them as "nonsexual." See

majority op. at ¶¶36, 39. In doing so, the majority incorrectly

draws inferences in Dunn County's favor, rather than Slabey's

favor. See Burbank Grease Servs., LLC v. Sokolowski, 2006 WI

103, ¶40, 294 Wis. 2d 274, 717 N.W.2d 781 (when reviewing a

summary judgment decision, "we draw all reasonable inferences

from the evidence in the light most favorable to the non-moving

party."). Sheriff's department officials viewed surveillance

footage of Boigenzahn quite literally "playing footsie" with

A.D., which even the Oxford English Dictionary recognizes as "surreptitiously touching a person's foot or ankle with one's

foot . . . as a playful expression of sexual attraction"

(emphasis added). Officials also viewed footage of A.D.

stroking Boigenzahn's chest and shoulder after he beckoned her

over to him. And A.D. reported that Boigenzahn told her that he

"didn't mind" when their hands touched. A jury, viewing

Boigenzahn's behavior in the proper context of the confinement

setting and drawing on their life experiences and common sense,

18 No. 2020AP877.jjk

could reasonably conclude that his actions were sexually

charged.

¶73 Third, a jury could find that Boigenzahn had a

propensity to lie and conceal inappropriate behavior, and that

the sheriff's department officials knew about his dishonesty.

Officials knew that Boigenzahn initially lied about passing

notes between male and female inmates, and only confessed when

told that he would be terminated for being untruthful.

Additionally, Boigenzahn himself admitted to officials that he

"tends not to tell the truth." And finally, officials knew that

Boigenzahn appeared to intentionally stand out of camera view in

the Huber Dorm. A jury could find that the Sheriff knew that he

could not trust Boigenzahn due to his deceptive tendencies, yet

chose to put him back in the female dorm, without the

supervision or monitoring that Boigenzahn clearly needed.

¶74 Taking all of these facts and inferences together, a

jury could find that there was a known or obvious risk that

Boigenzahn's behavior would escalate to sexual assault. The jury could find that the Sheriff received notice from multiple

female inmates that Boigenzahn's behavior was escalating, had

become physical, and would cross the line from merely

inappropriate to predatory, if it had not already. The jury

could find that this escalating behavior was, at the very least,

"conduct of a sexual implication" that——along with the inmates'

warnings——created notice of an obvious risk that sexual assault

would occur. The jury could find that Boigenzahn had already lied to sheriff's department officials and attempted to evade

19 No. 2020AP877.jjk

detection for his behaviors——thus, he could not be trusted and

clearly required supervision and monitoring. Taking all these

facts together in the context of the confinement setting, with

its stark power imbalance between guards and female inmates, the

jury could reasonably conclude that Boigenzahn's behavior

created a known or obvious risk that he would sexually assault

an inmate.

2. Deliberate Indifference to the Known or Obvious Risk of

Sexual Assault

¶75 A jury, having found that Boigenzahn's actions created

an obvious risk that sexual assault would occur, could further

find that the Sheriff's decision to put Boigenzahn back on his

normal shift reflected deliberate indifference to that risk.

¶76 In determining that the Sheriff was not deliberately

indifferent, the majority suggests that the Sheriff's chosen

course of action——suspending Boigenzahn for three days——was a

"severe" response to Boigenzahn's behavior, and that the Sheriff

chose it over less severe options. See majority op. at ¶¶36, 38. This does not square with the Sheriff's admission that

"historically fraternization turns into a termination," and that

a short suspension was the "minimum" appropriate disciplinary

action for passing notes. The Sheriff's disciplinary response

was lenient, based on his own admissions, and does not preclude

a finding of deliberate indifference as a matter of law. See

Cash, 654 F.3d 324 (2d Cir. 2011) (upholding a jury finding of

deliberate indifference even though the sheriff's department had previously suspended a guard for misconduct).

20 No. 2020AP877.jjk

¶77 The majority also concludes that the Sheriff's

decision to send Boigenzahn back to guard the female prisoners

on the night shift was not deliberate indifference in part

because moving Boigenzahn to a different shift with more

supervision "would affect somebody on day shift that would be

bumped off from that shift and forced onto the night shift."

See majority op. at ¶11. But the administrative inconveniences

inherent to protecting constitutional rights in the confinement

setting are no excuse for failing to protect those rights. For

instance, the difficulty in finding the time and staff to train

officers about the constitutional limits on excessive force

before handing those officers firearms would not preclude a

finding of deliberate indifference. See Canton, 489 U.S. at 390

n. 10. Nor would any difficulties, staffing or otherwise, in

enacting "centralized treatment protocols for chronically ill

inmates." See Glisson, 849 F.3d at 382. Replacing one staff

member or changing one staff member's schedule is not

"unworkable," as the majority suggests, see majority op. at ¶39, but in fact a relatively small undertaking compared to adopting

a new training program or revamping healthcare protocols;

therefore, it is difficult to understand why the inconvenience

of doing either would preclude a jury from finding for Slabey on

the deliberate indifference element of the Monell test. The

Sheriff may have decided to retain Boigenzahn despite his

behavior toward female inmates in part because replacing him

would be inconvenient, and "[Boigenzahn] had been a pretty good jailer on other notes," but the choice still demonstrated a

21 No. 2020AP877.jjk

deliberate indifference to the "note" that mattered here——the

safety of female inmates.

C. Causation

¶78 Slabey also established enough evidence for a jury to

reasonably find that the Sheriff's course of action caused

Slabey's injury.

¶79 Much of the same evidence that supports Slabey's claim

on the culpability requirement also supports it on the causation

requirement. Specifically, evidence of an obvious risk of

sexual assault can support both a finding of "deliberate

indifference" and "an inference of causation——that the

municipality's indifference led directly to the very consequence

that was so predictable." Bryan Cnty., 520 U.S. at 409-410. If

a jury could reasonably conclude that the risk of sexual assault

was obvious enough that the failure to take action constituted

deliberate indifference, it may take "but a small inferential

step" for a jury to find that the failure to take action caused

the injury. J.K.J., 960 F.3d at 384. Causation, like culpability, is a fact question for a jury——"finding causation

is not a mechanical exercise like working a math problem and

getting an answer, but instead requires jurors to view evidence

in its totality, draw on their life experiences and common

sense, and then reach reasonable conclusions about the effects

of particular action and inaction" (emphasis in original). Id.

at 384–385. Here, Slabey established enough evidence for a jury

to do so.

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¶80 Slabey's evidence "paved multiple roads for the jury

to travel" to find that the Sheriff's actions caused her injury.

See id. at 385. A jury could find that if the Sheriff had

pursued the typical course of action and terminated Boigenzahn

for his violations of the fraternization policy (and arguably,

the sexual misconduct policy, as discussed above), Boigenzahn

would not have had access to sexually assault Slabey or any

other inmate. A jury could alternatively find that if the

Sheriff had instead switched Boigenzahn to a shift that allowed

for more supervision, Boigenzahn would have been prevented from

spending a significant amount of time alone and unmonitored with

female inmates, and thus would have either been dissuaded from

sexually assaulting an inmate for fear of the consequences, or

denied the opportunity to sexually assault an inmate at all. A

jury could also infer that the Sheriff's failure to take any

additional action to protect female inmates both emboldened

Boigenzahn and silenced inmates who now understood that

objecting to his behavior was essentially futile. Since any of these inferences would be reasonable, a jury could conclude from

Slabey's evidence that the Sheriff's course of action caused the

sexual assault to happen.

¶81 The Sheriff's actions were the "moving force" behind

Slabey's injuries. See Bryan Cnty., 520 U.S. at 400. This is

not a case where a plaintiff is attempting to prove causation

simply by showing that she would not have been sexually

assaulted "but for" the municipality's original decision to hire the perpetrator. See id. Instead, Slabey established that her

23 No. 2020AP877.jjk

sexual assault was caused by the Sheriff's decision to put a

guard with a known history of inappropriate and arguably sexual

conduct toward female inmates back in a position where he would

be alone and unmonitored with those inmates. The Sheriff's

decision was thus not only a "but for" cause of Slabey's

injuries, but "closely related to the ultimate injury." See

Canton, 489 U.S. at 391. A jury could therefore reasonably find

that Slabey has met the causation requirement.

¶82 Because Slabey established sufficient evidence that a

final policy-maker acted with deliberate indifference to a

serious risk of sexual assault, and in doing so caused her

sexual assault, she has met all three requirements for Monell

liability. Based on the evidence Slabey provided, a jury could

reasonably find that the Sheriff knew that he was essentially

sending a fox back to guard the hen house, and in doing so was

deliberately indifferent to the constitutional rights of Dunn

County inmates. Therefore, Slabey's § 1983 claim against Dunn

County should survive summary judgment. III. CONCLUSION

¶83 Based on the evidence Slabey provided, a jury could

find that Dunn County Sheriff's Department officials ignored the

clear warning signs that Boigenzahn had already engaged in

inappropriate and escalating behavior with female inmates and

then created the circumstances that allowed Boigenzahn to

sexually assault Slabey. The Sheriff's deliberate course of

action enabled Boigenzahn to escape detection for 45 minutes as he was working alone, unsupervised, and unmonitored in the Huber

24 No. 2020AP877.jjk

dorm on the night he sexually assaulted Slabey. Slabey provided

sufficient evidence for a jury to reasonably find that the

Sheriff's course of action both demonstrated deliberate

indifference and was the causal "moving force" behind the sexual

assault. Slabey's § 1983 claim against Dunn County should

therefore survive summary judgment.

¶84 When municipalities take inmates into custody, they

assume a responsibility to protect them from sexual assault.

But this responsibility means little if the justice system is

unwilling to hold municipalities accountable when they fail to

protect their inmates. When municipalities are not held to

account, measures like PREA, enacted to eliminate sexual assault

in jails and prisons, are reduced to little more than a

perfunctory policy for correctional staff to sign, then freely

disregard. Dunn County threw a match into the tinderbox when it

sent Boigenzahn back to guard female inmates. The majority's

failure to hold Dunn County accountable is akin to standing idly

by as the fire burns. ¶85 I am authorized to state that Justice ANN WALSH

BRADLEY joins this dissent.

25 No. 2020AP877.jjk