J.K.J. v. Polk County, Wisconsin ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 18‐1498, 18‐1499, 18‐2170, & 18‐2177
J.K.J. and M.J.J.,
Plaintiffs‐Appellees,
v.
POLK COUNTY and
DARRYL L. CHRISTENSEN,
Defendants‐Appellants.
____________________
Appeals from the United States District Court for the
Western District of Wisconsin.
Nos. 15‐cv‐428‐wmc and 15‐cv‐433‐wmc — William M. Conley, Judge.
____________________
ARGUED NOVEMBER 9, 2018 — DECIDED JUNE 26, 2019
____________________
Before BAUER, BRENNAN, and SCUDDER, Circuit Judges.
BRENNAN, Circuit Judge. Darryl Christensen, a Polk
County, Wisconsin Jail corrections officer, sexually assaulted
plaintiffs J.K.J. and M.J.J. over three years during their incar‐
cerations. Plaintiffs sued Christensen and the county under 42
U.S.C. § 1983, alleging Eighth and Fourteenth Amendment
claims, in addition to a state law negligence claim against the
county. After trial, the jury found Christensen and the county
2 Nos. 18‐1498, et al.
liable for J.K.J. and M.J.J.’s injuries and awarded each $2 mil‐
lion in compensatory damages. The jury also levied punitive
damages against Christensen, awarding $3,750,000 to each
plaintiff. Both defendants moved for new trials, and the
county also moved for judgment as a matter of law. The dis‐
trict court denied those requests and defendants now appeal
the judgments entered against them.
We see no reason to disturb the jury’s verdict against
Christensen and so affirm the denial of his request for a new
trial. His assaults were predatory and knowingly criminal.
But to impose liability against the county for Christensen’s
crimes, there must be evidence of an offending county policy,
culpability, and causation. These are demanding standards.
Christensen’s acts were reprehensible, but the evidence
shows no connection between the assaults and any county
policy. We therefore reverse and remand for entry of judg‐
ment in favor of the county.
I. BACKGROUND
A. Christensen’s Sexual Assaults
M.J.J. and J.K.J. were inmates at Polk County Jail at various
times between 2011 and 2014. Christensen admits he engaged
in sexual acts with the women individually. To hide his of‐
fenses, Christensen planned his encounters to occur when no
one was present and in locations where he controlled access.
He also urged plaintiffs not to discuss or report his sexual ad‐
vances because he would lose his job and family if caught.
Plaintiffs complied with Christensen’s secrecy directive and
his assaults were kept hidden from jail officials.
Polk County authorities discovered Christensen’s assaults
against M.J.J. and J.K.J. after a former inmate reported her
Nos. 18‐1498, et al. 3
own sexual encounters with Christensen to an investigator in
a neighboring county. When notified of the former inmate’s
allegations, county authorities initiated an internal investiga‐
tion and confronted Christensen, who immediately resigned.
The investigation continued, which led to the discovery of
Christensen’s abuse of plaintiffs, and ultimately to his prose‐
cution. He eventually pleaded guilty to several counts of sex‐
ual assault and is serving a 30‐year prison sentence.
B. Trial Evidence
Plaintiffs sued the county and Christensen in separate ac‐
tions and the cases were consolidated for jury trial. Plaintiffs
alleged that defendants were deliberately indifferent to a se‐
rious risk of sexual assault in violation of their Eighth and
Fourteenth Amendment rights, and that the county violated
state law by negligently supervising Christensen.
At trial, Christensen admitted his offenses but challenged
the harms plaintiffs suffered. He argued plaintiffs consented
to his overtures and that their encounters were the product of
“voluntary attraction.” Although not stated directly, his posi‐
tion implied that any award of damages should correspond
to plaintiffs’ level of consent. Plaintiffs denied consenting to
Christensen’s advances and offered expert testimony show‐
ing their mental trauma from his assaults.
Against the county, plaintiffs made four principal allega‐
tions: (1) the jail’s sexual assault policies and training were in‐
adequate; (2) the jail customarily tolerated sexually offensive
comments by guards; (3) the investigation of a former guard
revealed the jail’s sexual assault policy was inadequate and
that the jail minimized sexual abuse; and (4) the jail failed to
widely implement recommendations under the Prison Rape
4 Nos. 18‐1498, et al.
Elimination Act (PREA), 34 U.S.C. §§ 30301–09. The sum of
these allegations, plaintiffs argued, prove the county was de‐
liberately indifferent to a known risk of sexual assault by jail
staff. The county disagreed, arguing that the trial evidence
did not support the jury’s liability finding and damages
awards. These claims were heavily contested, and we recount
the evidence noting those facts the county disputed. Although
we summarize the trial evidence, on appeal we view the facts
in the light most favorable to the jury’s verdict. See Lindsey v.
Macias, 907 F.3d 517, 518 n.1 (7th Cir. 2018).
1. Policies and training
Plaintiffs alleged the jail had no policy either to prevent or
detect sexual assaults, and that its policies on sexual miscon‐
duct were “practically nonexistent.” At trial, the county pro‐
duced several policies prohibiting sexual contact between
guards and inmates, and two stand out.
Policy I‐100 forbids any mistreatment or harassment of in‐
mates, explaining inmates’ rights and informing them that it
is never acceptable for “any inmate [to] be the object of verbal,
physical, emotional, psychological, or sexual harassment by
facility staff.” The policy continues, “[a]ny officer engaged in
such actions is subject to disciplinary charges and/or termina‐
tion.” Inmates are also provided a handbook when booked
into the jail that says:
Every inmate has the right to be safe from sex‐
ual abuse and harassment. No one has the right
to pressure you to engage in sexual acts. If you
are being pressured threatened, or extorted for
sex, you should report this to staff immediately.
Nos. 18‐1498, et al. 5
Likewise, Policy C‐202 prohibits any “intimate social or
physical relationship with a prisoner.” It also informs jail staff
that sexual contact with any inmate is a criminal offense un‐
der Wisconsin law, and any officer that suspects such conduct
has a duty to report it. See Wis. Stat. § 940.225(2)(h) (catego‐
rizing sexual contact and sexual intercourse by a correctional
staff member with an inmate as a Class C felony).
Plaintiffs also claimed the county never trained officers to
avoid sexual assaults. But the jail’s onboarding and continu‐
ing education programs instruct employees that sexual con‐
tact with prisoners is a crime and never permitted. The
Wisconsin Department of Corrections (DOC) approved these
programs annually, requiring: (1) eight to ten weeks of “field
training,” during which a new corrections officer shadows an
experienced officer to learn jail policies and procedures; (2)
completion of a 160‐hour jail training program to become a
certified corrections officer; (3) 24 hours of continuing educa‐
tion each year to be recertified; and (4) daily training, which
includes specific training on the jail’s prohibition against frat‐
ernizing with inmates.
At trial, Christensen acknowledged the jail trained him
that sexual contact with inmates is a felony and against jail
policies. Specifically, Christensen testified:
 He knew his conduct violated jail policy;
 He was trained his conduct was a crime;
 He knew he was putting plaintiffs at risk;
 He never forgot that sex with inmates was a crime; and
 He agreed he did not require more training to know
his conduct was a crime.
6 Nos. 18‐1498, et al.
Plaintiffs’ expert witness on prison training standards,
Jeffrey Eiser, testified that the jail’s policies prohibited sexual
contact between inmates and guards. Eiser also corroborated
that the county trained Christensen that sexual contact with
inmates was a felony and against jail policy.
To support their contention that the jail never trained its
staff, plaintiffs relied on two witnesses. The first, Lynelle
Manning, was a jailer with the county for about 20 months.
Manning testified that although she was never officially cer‐
tified as a correctional officer, she received “formal training”
by the jail and shadowed a senior officer for weeks. She also
received and read the jail’s policy and inmate booking manu‐
als, which contain the jail’s prohibition of sexual contact be‐
tween guards and inmates. Manning also testified that during
her employment she never heard sexually charged conversa‐
tions between jail staff and inmates.
Plaintiffs’ second witness, Sergeant Steven Schaefer of the
county’s sheriff’s department, worked at the jail from 2002
until 2015. Schaefer testified “we were all required to attend”
countywide training on sexual harassment. He provided the
training to new employees from time to time. According to
Schaefer, that training instructed on the jail’s numerous pro‐
hibitions between staff and inmates, including improper com‐
ments, becoming too close or too familiar, sharing personal
information, and sexual relationships. He also agreed that im‐
proper relationships between inmates and guards were
“something that the jail as a whole took very seriously.” Not‐
withstanding Schaefer’s testimony, plaintiffs’ counsel told the
jury during closing argument: “You heard Sergeant Schaefer
say, ‘We never trained on it. We never trained on it. We never
trained on it.’”
Nos. 18‐1498, et al. 7
2. Inappropriate speech
Next, plaintiffs alleged that jail staff routinely made sex‐
ually inappropriate comments about female inmates without
repercussions.
According to plaintiffs, Captain Scott Nargis, who over‐
saw daily operations of the jail, was the reason that sexually
offensive speech was accepted at the jail. During adverse
examination, plaintiffs’ counsel asked Nargis if he ever “en‐
gaged in tier talk which is not necessarily flattering talk
amongst co‐workers”; Nargis answered “yes.” Nargis also
agreed that he participated in tier talk “on occasion” to estab‐
lish trust among subordinate officers. Plaintiffs never asked
Nargis on the witness stand if he himself made sexual com‐
ments. Nor did plaintiffs present evidence that tier talk con‐
noted “sexual talk,” that Nargis’s “tier talk” was sexually
explicit, or that Nargis made comments sexual in nature with,
about, or around inmates or guards.
Evidence to suggest Nargis knew about offensive com‐
ments by jail staff was scarce and unclear as to timing. Nargis
testified that during Christensen’s twelve‐year employment,
he once heard Christensen comment on a female’s “rear end.”
He did not recall whether that comment was made about an
inmate. Nargis also recalled being told that Christensen once
remarked about an inmate’s breasts.
Evidence of inappropriate sexual comments by other jail
staff was also sparse and unspecific. J.K.J. testified she be‐
lieved two other corrections officers once overheard Christen‐
sen making flirtatious comments to inmates. Christensen also
8 Nos. 18‐1498, et al.
testified to overhearing a jail guard, Allen Jorgenson, and two
other guards make suggestive comments to inmates. But J.K.J.
and Christensen offered no specifics on the alleged com‐
ments, and there was no evidence these incidents were re‐
ported to the county or any jail supervisor.
3. Investigation of former guard
At trial, plaintiffs introduced one other allegation of sex‐
ual contact between a jail guard, Jorgenson, and an inmate,
N.S.: another inmate saw Jorgeson put his arm around N.S.’s
waist and “pat her on the butt.” This occurred in 2012, two
years before the discovery of Christensen’s violations.1 Ser‐
geant Steven Schaefer reported these allegations to Nargis,
who in turn questioned Jorgenson and N.S. individually.
Each denied any improper relationship or contact. Despite
these denials, Nargis requested the assistance of chief deputy
sheriff Steven Moe to further investigate Jorgenson.
To plaintiffs, the Jorgenson investigation proves the
county “minimized” and ignored allegations of a guard as‐
saulting an inmate. At trial, the jury considered the findings
of the Jorgenson investigation, including Jorgenson’s interac‐
tions with N.S. Another inmate believed Jorgenson and N.S.
had an “inappropriate relationship” but “no physical rela‐
tionship.” It was also reported that Jorgenson misused a jail
camera to focus on inmates longer than necessary. In addition
to an internal investigation, Nargis and Moe reached out to
former inmates as part of their review. Because of inconsistent
1 Although Christensen’s assaults began in 2011, the county first
learned of his assaults on October 29, 2014.
Nos. 18‐1498, et al. 9
witness accounts, Nargis and Moe could not confirm that
Jorgenson engaged in any sexual contact with N.S. Still,
Nargis and Moe concluded that Jorgenson’s affiliation with
N.S. violated jail policy. As a result, Jorgenson was issued a
written reprimand for “foster[ing] a friendship relationship”
by giving “undue, unfair, or simply too much attention” to
N.S., who continued to deny any improper actions or relation‐
ship up to the point of Jorgenson’s reprimand.
After Jorgenson was written up, N.S. recanted her denials
in a letter to Nargis. In response, Nargis and Moe reopened
the investigation “to take a whole fresh look at the situation.”
N.S.’s letter detailed that Jorgensen made sexually harassing
gestures and crude and indecent remarks, and asserted alle‐
gations of Jorgeson putting his arm around N.S.’s waist and
touching her “back and butt.” After this second review,
Nargis and Moe could not confirm these allegations and de‐
cided the reprimand remained the appropriate level of disci‐
pline. At trial, no evidence was submitted that Nargis or Moe
erred in the Jorgenson investigation or performed their in‐
quiries in bad faith. In closing, plaintiffs’ counsel argued to
the jury that the “jail knew that one of their trusted friends
was committing sexual assault against at least one inmate,
N.S.” but considered it “no big deal.”
Jorgenson also made inappropriate remarks, of which in‐
mates and staff were aware. But there was no evidence
Jorgenson’s improper comments were reported to Nargis,
Moe, or any county policymaker before the N.S. investiga‐
tions. On that point, the county argued the N.S. allegations
prompted complaints by various female coworkers, who
10 Nos. 18‐1498, et al.
claimed Jorgenson made inappropriate comments to them as
well. Those coworker complaints led to a human resources in‐
vestigation that resulted in Jorgenson resigning.
4. Prison Rape Elimination Act (PREA)
The county’s sexual assault policies were inadequate to
prevent and detect assaults, and the county deliberately
avoided opportunities to reduce sexual assault risks, accord‐
ing to plaintiffs. Both arguments were based on the county’s
purported underutilization of policy recommendations from
PREA.
Again, plaintiffs zeroed in on Nargis. They claimed the jail
intentionally shunned PREA because Nargis openly “deni‐
grated … PREA standards,” citing a 2014 email from Nargis
to jail staff about PREA training:
Seems to be that everyone is in a tizzy to train
their staff on PREA. There is no requirement for
use [sic] to be compliant with everything that
the law calls for, but nevertheless it is federal
law. So we’ll hit the basics of PREA training.
At trial, plaintiffs termed this “the tizzy email.” To plain‐
tiffs, Nargis’s choice of the word “tizzy” was “mocking”
PREA and “indicat[ed] that he disliked PREA.” They also
claimed the email never discussed any specific PREA
measures. Rather, it merely restated the jail’s current anti‐
sexual assault policies. Plaintiffs argued “the tizzy email”
proves that Nargis and the jail “consciously disregarded”
PREA standards, and by extension, disregarded the risk of
sexual assaults at the jail.
Nos. 18‐1498, et al. 11
Plaintiffs’ expert Eiser opined that the jail’s sexual assault
policies and training were inadequate because they did not
fully adopt certain components of PREA. Eiser conceded com‐
pliance with PREA is not mandatory for county jails in
Wisconsin, and that PREA standards are better viewed as op‐
tional “best practices.” Eiser also testified there is no empirical
data that compliance with the proposed best practices would
yield a better result. Plaintiffs agree that state law, not PREA,
governs county jails in Wisconsin, but did not offer evidence
that the jail’s sexual assault policies or training fell below state
legal or administrative standards.
As for compliance with state law, the county argued the
DOC annually reviews the jail’s policies, including its policy
prohibiting fraternization with inmates. In each year of plain‐
tiffs’ incarcerations, the DOC found the jail to be in full com‐
pliance with all applicable Wisconsin statutes and
regulations. Language addressing PREA was added to the
jail’s anti‐fraternization policy in 2012, with an accompanying
PREA training in 2014. The county also noted that in the past
nine years, during which the jail housed 14,100 inmates,
Jorgenson’s circumstance was the only known improper rela‐
tionship between a guard and an inmate.
C. Verdict and Post‐Verdict Motions
The district court bifurcated the trial into liability and
damages phases. At the close of the liability phase, during the
jury instruction conference, the court found the evidence
failed to show a pattern of constitutional violations known to
county policymakers. As a result, the court excluded this basis
12 Nos. 18‐1498, et al.
of liability from the jury instructions, leaving plaintiffs to ar‐
gue that the “risk of the inadequacy of the training, supervi‐
sion, and/or adoption of policies [was] plainly obvious.” The
court also rejected a jury instruction as to whether plaintiffs
consented to Christensen’s sexual contact and thus reduced
plaintiffs’ harm.
After a five‐day trial, the jury found for plaintiffs on all
claims and awarded each plaintiff $2 million in compensatory
damages against the county and Christensen. The jury also
awarded $3,750,000 to each plaintiff in punitive damages
against Christensen.
After the verdict, Christensen moved for a new trial under
FED. R. CIV. P. 59. Christensen argued there was insufficient
proof that he harmed plaintiffs or was aware of the substan‐
tial risk of harm his actions imposed. The district court re‐
jected these arguments, relying on plaintiffs’ testimony that
they never consented to Christensen’s advances.
The county also moved for judgment as a matter of law
under Rule 50(b) and for a new trial under Rule 59. This re‐
sulted in partial yet hollow success for the county—the dis‐
trict court granted judgment to the county on plaintiffs’ state
law negligence claims, but denied the county judgment on
plaintiffs’ § 1983 claims, as well as a new trial.
The district court rejected the county’s contention that
plaintiffs failed to prove it was culpable for and the cause of
Christensen’s violations, as required for liability under Monell
v. New York City Dep’t of Soc. Servs, 436 U.S. 658 (1978). Alt‐
hough the court noted the evidence against the county was
“not overwhelming,” it concluded three subjects supported
Nos. 18‐1498, et al. 13
the verdict: (1) jail supervisor Nargis “generally acknowl‐
edged his awareness of tier talk” at the jail; (2) Nargis was
aware of sexual comments by correctional officers to inmates
and female employees through the Jorgenson investigation,
in addition to two comments made by Christensen; and (3)
the county held only one PREA training session. For the dis‐
trict court, this was sufficient evidence for the jury to find
“that Nargis and others within the [county] … acted with
deliberate indifference to the need for better training, super‐
vision and policies.” So the verdict against the county re‐
mained intact.2
II. DISCUSSION
The county and Christensen both argue the district court
improperly denied them judgment as a matter of law or a new
trial under Rules 50 and 59. At the outset, we note Christensen
never filed a post‐verdict motion for judgment as a matter of
law under Rule 50. Without such a motion, he forfeited his
request for judgment under that rule, and our review is lim‐
ited to his request for a new trial under Rule 59. See Unitherm
Food Sys., Inc. v. Swift‐Eckrich, Inc., 546 U.S. 394, 400–01, 404–
05 (2006); accord Collins v. Lochard, 792 F.3d 828, 831 (7th Cir.
2015).
A district court may enter judgment as a matter of law un‐
der Rule 50 when it “finds that a reasonable jury would not
2 On plaintiffs’ state law claims of negligent training and supervision,
the district court concluded the county was entitled to immunity under
WIS. STAT. § 893.80(4). Opinion and Order at 3–6, J.K.J. v. Polk Cty., No.
15‐CV‐428 (W.D. Wis. Feb. 5, 2018), ECF No. 279. Plaintiffs do not appeal
this decision, nor do they appeal the district court’s liability phase ruling
that plaintiffs failed to offer proof of a pattern of prior constitutional vio‐
lations known to policymakers.
14 Nos. 18‐1498, et al.
have a legally sufficient evidentiary basis” to support its ver‐
dict. FED. R .CIV. P. 50(a)(1); see also Rule 50(b). We review the
denial of a Rule 50 motion de novo and proceed “on the basis
of the evidence the jury actually had before it.” Houskins v.
Sheahan, 549 F.3d 480, 493 (7th Cir. 2008) (internal citation
omitted) (denying Monell claim). We will overturn a jury ver‐
dict if it is clear plaintiffs failed to present enough evidence to
support their claims. Id. (citing Filipovich v. K & R Express Sys.,
Inc., 391 F.3d 859, 863 (7th Cir. 2004)). “Our job is to assure
that the jury had a legally sufficient evidentiary basis for its
verdict.” Filipovich, 391 F.3d at 863.
Under Rule 59, a district court may order a new trial “for
any reason for which a new trial has heretofore been granted
in an action at law in federal court.” FED. R. CIV. P. 59(a)(1)(A).
A new trial is appropriate if the jury’s verdict is against the
manifest weight of the evidence or if the trial was in some way
unfair to the moving party. Martinez v. City of Chicago, 900
F.3d 838, 844 (7th Cir. 2018) (citation and quotation marks
omitted). We will not disturb a district court’s Rule 59 deci‐
sion except under exceptional circumstances showing a clear
abuse of discretion. Id.
First, we consider whether the district court improperly
refused to grant the county’s motion for judgment as a matter
of law. Later, we turn to Christensen’s claim that he is entitled
to a new trial.
A. The County
The county argues Monell precludes the jury’s finding of
§ 1983 liability against it. Under Monell, “a municipality can
be found liable under § 1983 only where the municipality itself
causes the constitutional violation at issue.” City of Canton,
Nos. 18‐1498, et al. 15
Ohio v. Harris, 489 U.S. 378, 385 (1989) (emphasis in original);
see also Connick v. Thompson, 563 U.S. 51, 60 (2011) (“[U]nder
§ 1983, local governments are responsible only for their own
illegal acts.” (emphasis in original)). Thus, a municipality can‐
not be held liable under § 1983 solely because one of its agents
or employees may have violated an individual’s constitu‐
tional right. Monell, 436 U.S. at 691, 694 (rejecting § 1983 liabil‐
ity predicated on theory of respondeat superior). Instead, a
municipality’s own policy or custom must have caused the
constitutional violation. Id.; Glisson v. Indiana Dep’t of Corr.,
849 F.3d 372, 379 (7th Cir. 2017) (en banc) (“The central ques‐
tion is always whether an official policy … caused the consti‐
tutional violation.”).
To establish municipal liability under Monell, a plaintiff
must prove three things. First is the existence of an unconsti‐
tutional policy. This can be done by showing either: (a) an ex‐
press policy that, when enforced, causes a constitutional
deprivation; (b) a widespread practice that, although not au‐
thorized by written law or express policy, is so permanent
and well settled as to constitute a custom or usage with the
force of law; or (c) that the constitutional injury was caused
by a person with final decision policymaking authority.
Spiegel v. McClintic, 916 F.3d 611, 617 (7th Cir. 2019). Second is
that the municipality is culpable, which means the municipal‐
ity’s policymakers were deliberately indifferent to a known or
obvious risk that a policy or custom would lead to constitu‐
tional violations. Board of Comm’rs of Bryan Cty. v. Brown, 520
U.S. 397, 407, 410 (1997) (citing Canton, 489 U.S. at 388). Third,
the municipality’s policy must “directly cause[] a deprivation
of federal rights.” Id. at 415. In other words, the county’s own
actions must be the “moving force” behind plaintiff’s injuries.
Id. at 404.
16 Nos. 18‐1498, et al.
An unconstitutional policy can include implicit policies, or
a gap in expressed policies. Daniel v. Cook Cty., 833 F.3d 728,
734 (7th Cir. 2016) (citations omitted). Either way, plaintiffs
must prove an actual policy is at issue, not a random event.
See Calhoun v. Ramsey, 408 F.3d 375, 380 (7th Cir. 2005). Here,
plaintiffs alternate between arguing Christensen’s violations
were the byproduct of an implicit policy, reflected in the jail’s
alleged widespread practice and custom of “allow[ing] and
encourag[ing] inappropriate sexual behavior,” and purported
gaps in the county’s express sexual assault policies, reflected
in the absence of PREA measures.3
At trial, plaintiffs advanced a number of theories of the
county’s liability under Monell. We start with plaintiffs’ claim
that the county was deliberately indifferent to a known and
obvious risk that its express policies would lead to, and in fact
caused, Christensen’s assaults. Then, we consider whether
plaintiffs’ general allegations against the county amount to an
implicit policy, i.e., a widespread practice or custom, that per‐
mits sexual misconduct by jail staff; and if so, whether the
county’s deliberate indifference to that policy caused
Christensen’s assaults. Next, we examine plaintiffs’ conten‐
tion that the county was deliberately indifferent to the need
for more training and supervision, causing plaintiffs’ injuries.
3 The district court concluded Nargis was a policymaking official. The
county challenges this finding. An “official policy” is the predicate for mu‐
nicipal liability under Monell. See Pembaur v. City of Cincinnati, 475 U.S. 469,
478 (1986). But even if Nargis’s acts are said to represent the county’s offi‐
cial policy, the evidence still fails to show a connection between the as‐
saults and any county policy, much less any policy attributed to Nargis.
Because it does not affect the outcome of this case, we need not resolve the
question whether Nargis possessed the requisite policymaking authority
to establish an official policy within the meaning of Monell.
Nos. 18‐1498, et al. 17
After that, we address whether Christensen’s constitutional
violations were a highly predictable consequence of the jail’s
failure to train its staff allowing for single‐incident liability.
Last, we consider the sufficiency of the evidence in light of the
county’s motion for judgment as a matter of law, which the
district court denied.
1. Express policies
The express terms of the jail’s sexual assault policies (I‐100
and C‐202, described above) are not constitutionally suspect,
per plaintiffs. Instead, they challenge alleged gaps or omis‐
sions in those policies. Plaintiffs contend the policies do not
provide adequate measures to prevent and detect sexual
assault—namely, measures suggested by PREA. “[T]he ab‐
sence of a policy might reflect a decision to act unconstitution‐
ally, but the Supreme Court has repeatedly told us to be
cautious about drawing that inference.” Calhoun, 408 F.3d at
380 (citing Bryan Cty., 520 U.S. at 409 and Canton, 489 U.S. at
388).
On this theory, the county’s culpability hinges on whether
it was deliberately indifferent to an obvious need to update or
enhance its sexual assault policies. Liability could be estab‐
lished by showing the county adhered to a policy that it knew,
or should have known, failed to prevent assaults by jail staff.
But plaintiffs supplied no evidence of policy violations put‐
ting the county on notice of a sexual assault problem to re‐
solve or act upon. Cf. Woodward v. Correctional Med. Servs. of
Ill., Inc., 368 F.3d 917, 930 (7th Cir. 2004) (affirming judgment
under Monell where evidence showed contractor violated the
defendant’s express policies and repeatedly failed to act in the
18 Nos. 18‐1498, et al.
face of known violations). Even plaintiffs’ expert, Eiser, con‐
ceded the Jorgenson incident did not downgrade the jail’s
good record on this front.
To try to address this lack of evidence, on appeal plaintiffs
interline a proposition in Glisson with bracketed materials:
“the existence of the [PREA] Guidelines, with which [Nargis]
was admittedly familiar, is evidence that could persuade a
trier of fact that [Polk County] consciously chose the approach
that it took.” Brief of Plaintiffs‐Appellees at 33, J.K.J. v. Polk
Cty., Nos. 18‐1498 and 18‐2170 (7th Cir. Oct. 3, 2018), quoting
Glisson, 849 F.3d at 380. But Glisson concerned whether a de‐
fendant “had a policy to eschew any way of coordinating
[health] care.” Id. at 381. Here, the county enforced, rather
than avoided, written policies prohibiting any form of sexual
contact. Plaintiffs’ Glisson “parallel” ignores that municipal
fault still must be established. Without knowledge of an obvi‐
ous risk, plaintiffs’ argument is unavailing.
Plaintiffs fare no better blaming the county for underuse
of PREA. Their argument implies PREA binds states to imple‐
ment and enforce its guidelines. But PREA, a federal statute,
imposes no such obligations on county‐run jails. See 34 U.S.C.
§§ 30301–09. Wisconsin law governs the county’s sexual
assault policies, and its prohibition of sexual contact between
guards and inmates is absolute. WIS. STAT. § 940.225(2)(h); see
also Ramos v. Hamblin, 840 F.3d 442, 444 (7th Cir. 2016) (noting
Wisconsin DOC rules corresponding with PREA make the
prevention of prison rape a “priority concern”). Likewise, the
county’s policies prohibit such contact, and the county
showed that its policies fully complied with all applicable
Wisconsin statutes and regulations. Wisconsin may elect to
Nos. 18‐1498, et al. 19
adopt or fully comply with PREA standards. See 34 U.S.C.
§ 30307(e)(2)(A). But where Wisconsin has not incorporated
components of PREA into its laws and regulations, it is be‐
yond the role of federal courts to render those components a
constitutional requirement. See Bryan Cty., 520 U.S. at 415
(admonishing that “[a] failure to apply stringent culpability
and causation requirements raises serious federalism con‐
cerns” and “risks constitutionalizing” requirements states
have not chosen to impose).
ʺ[D]eliberate indifference is a stringent standard of fault,”
and not even a showing of heightened negligence will suffice
to establish liability. Bryan Cty., 520 U.S. at 407, 410. Proof is
required that a county policymaker disregarded a known or
obvious consequence of his action or inaction. Id. at 410; see
also Connick, 563 U.S. at 61 (citation omitted). Here, PREA
might have been relevant to show a conspicuous flaw in the
county’s policies, but the record shows no evidence of such a
flaw. When Christensen assaulted plaintiffs, the jail had no
history of sexual assaults and operated under zero‐tolerance
sexual assault policies. Eiser’s ratification of the jail’s “good
record” before the jail learned of Christensen’s sexual assaults
shows that the jail reasonably relied on the effectiveness of its
express policies. In the absence of other evidence, we con‐
clude no rational jury could infer that the jail’s express poli‐
cies were obviously deficient, that the county was or should
have been aware that jail policies were inadequate, that as‐
saults were imminent, or that PREA sets the norm.
20 Nos. 18‐1498, et al.
As for causation, plaintiffs offered no facts at trial from
which the jury could conclude that a gap in the county’s ex‐
press sexual assault policies caused their injuries. See Bryan
Cty., 520 U.S. at 406 (observing that challenges to a facially
valid municipal policy “present much more difficult prob‐
lems of proof”). Nor on appeal do plaintiffs point to any such
facts. The Supreme Court demands that courts “carefully test
the link between the policymaker’s inadequate decision and
the particular injury alleged.” Id. at 410. After examining the
express policies here, we cannot conclude the county was cul‐
pable for, or its sexual assault policies caused, Christensen’s
assaults.
2. Implicit policy
The county’s real policy was to ignore its policies, accord‐
ing to plaintiffs, as shown by Nargis’s admission of tier talk,
the tizzy email, inappropriate staff comments, and the Jorgen‐
son investigation. Plaintiffs contend the sum of these impro‐
prieties resulted in a widespread practice of allowing and
encouraging sexual misconduct.
Nargis was a focal point of plaintiffs’ implicit policy claim,
beginning with the allegation that he promoted a “toxic cul‐
ture” by participating in tier talk and acceding to offensive
remarks by jail staff. In our de novo review of the record, how‐
ever, this allegation lacks support. The only reference at trial
to “tier talk” occurred during plaintiffs’ examination of
Nargis. And when Nargis admitted to “tier talk,” he did so
only within plaintiffs’ limited definition (“not necessarily flat‐
tering talk”). Plaintiffs failed to include that their definition
encompassed a sexual subtext. Rather, plaintiffs grafted a sex‐
ual connotation onto the term after trial in response to the
Nos. 18‐1498, et al. 21
county’s appeal.4 The record also contains no evidence that
Nargis’s tier talk was sexually explicit, profane, or insensitive.
Despite this evidentiary void, plaintiffs mischaracterize the
record in their response on appeal: “Captain Nargis routinely
engaged in sexually explicit ‘tier talk.’”5
Our dissenting colleague concludes that a reasonable jury
could find that Nargis’s tier talk was sexual in nature. But we
believe this inference relies on plaintiffs’ post‐trial rebranding
of the phrase. Although we view the facts in the light most
favorable to the jury’s verdict, we are not required to draw
unreasonable inferences. Tindle v. Pulte Home Corp., 607 F.3d
494, 496 (7th Cir. 2010). Only reasonable inferences may be
considered. See Hermes v. Hein, 742 F.2d 350, 353 (7th Cir.
1984). At trial, in questioning other witnesses about indecent
remarks, plaintiffs routinely and frequently used concrete
and specific terms such as “sexual comments,” “inappropri‐
ate comments,” and “sexual harassment.” None of these de‐
fined terms were used when plaintiffs questioned Nargis
4The district court’s order on the county’s Rule 50 motion also as‐
sumes “tier talk” had a sexual implication despite the lack of any trial ev‐
idence or definitional reference that “tier talk” included a sexual
component. See Opinion and Order at 8–9, J.K.J. v. Polk Cty., No. 15‐CV‐428
(W.D. Wis. Feb. 5, 2018), ECF No. 279.
5 Appellees’ Br. at 14. This was not the only mischaracterization in that
brief. Steven Schaefer testified that all jail officers were required to attend
countywide training on sexual harassment, which included the jail’s pro‐
hibition of sexual assaults. At times, Schaefer even gave the training. But
plaintiffs’ appeal brief declares: (1) “Sergeant Steven Schaefer also testified
to never receiving any training regarding sexual assault”; and (2) Manning
and Schaefer “unanimously agreed that they received no training on sex‐
ual assault at any time.” Appellees’ Br. at 13. Counsel for plaintiffs said
the same during closing arguments.
22 Nos. 18‐1498, et al.
about tier talk. We therefore cannot assume that Nargis’s ad‐
mission of “not necessarily flattering talk” means “sexual
talk.” Instead, we take plaintiffs at their word that “tier talk”
means what they told Nargis it means. That Nargis conceded
to nondescript tier talk does not prove that he promoted a
“toxic culture.” Nor does it prove the county ignored relevant
policies.
The claim based on the “tizzy email” that Nargis mocked
and disliked PREA also does not help plaintiffs. Even if we
assume Nargis on one occasion discredited PREA, this does
not constitute a policy of permitting sexual assaults. Nor can
we infer that a supervisor’s one‐time use of a condescending
noun (“tizzy”) establishes a conscious disregard for measures
to prevent sexual assaults.
As for inappropriate remarks by staff, plaintiffs intro‐
duced the following evidence: (1) J.K.J. testified two officers
overheard Christensen making flirtatious comments to in‐
mates; (2) Christensen testified he overheard three guards
make suggestive remarks to inmates; and (3) Nargis knew of
two inappropriate remarks made by Christensen over a
twelve‐year period.6 We consider whether this proof reflected
an implicit policy under the applicable law.
Monell claims based on an unconstitutional implicit policy
require proof of a “widespread” practice. See Bryan Cty., 520
6 Sergeant Schaefer testified that Jorgenson made one “or maybe two”
inappropriate comments to him over a nine‐year period. Because Schaefer
did not believe the comments rose to a level warranting discipline, how‐
ever, he neither reported them to management nor explained the nature
of those comments at trial.
Nos. 18‐1498, et al. 23
U.S. at 404; see also Monell, 436 U.S. at 692 (defining a wide‐
spread practice as one that is “persistent,” “permanent,” and
“well settled”). “[P]roof of isolated acts of misconduct will not
suffice; a series of violations must be presented to lay the
premise of deliberate indifference.” Palmer v. Marion Cty., 327
F.3d 588, 596 (7th Cir. 2003) (citation omitted) (“A series of
violations is necessary”; two incidents in one year is not
enough). The offensive comments overheard by J.K.J. and
Christensen are unclear; no evidence was adduced as to ex‐
actly what was said, the context of the remarks, or when they
were said. Nor were these comments reported to Nargis or
any other jail supervisors. These two allegations of unre‐
ported and undefined remarks (outside of those later learned
during the Jorgenson investigation) here are insufficient to
show a widespread custom or practice. See Doe v. Vigo Cty.,
Indiana, 905 F.3d 1038, 1045 (7th Cir. 2018) (holding three inci‐
dents of sexual contact, two instances of inappropriate re‐
marks, two allegations of sexual harassment, and one
example of cornering an employee for sex, taken together,
failed to establish a widespread county practice).7 Likewise,
7 On a number of occasions this court has considered the quantity and
frequency of violations required to qualify as a “widespread” pattern or
practice in a correctional facility. See Pittman ex rel. Hamilton v. Cty. of
Madison, Ill., 746 F.3d 766, 780 (7th Cir. 2014) (36 suicide attempts and three
successful suicides in five‐year period does not evidence that the jail’s su‐
icide prevention policies are inadequate); Walker v. Sheahan, 526 F.3d 973,
977 (7th Cir. 2008) (783 excessive force complaints at jail over a 5‐year pe‐
riod, none of which resulted in an indictment, does not support inference
of a widespread practice of excessive force); Klebanowski v. Sheahan, 540
F.3d 633, 638 (7th Cir. 2008) (the recovery of 14 shanks after two gang at‐
tacks, one of which involved a stabbing by a shank, is insufficient to es‐
tablish the existence of a widespread practice of allowing gang members
24 Nos. 18‐1498, et al.
Nargis’s personal knowledge of two inappropriate remarks
by Christensen over twelve years falls short of indicating a
widespread unconstitutional practice. See Palmer, 327 F.3d at
596 (concluding personal knowledge of two incidents of mis‐
conduct by officers in a period of one year is insufficient to
indicate a widespread practice). Given the law’s require‐
ments, including as to quantity and to frequency, we do not
conclude these suggestive and inappropriate remarks
amounted to a “widespread practice” so as to constitute an
unconstitutional implicit policy.
Next, plaintiffs contend the Jorgenson investigation gave
the county sufficient notice that its sexual assault policies
were deficient. The allegations of Jorgenson’s improper con‐
tact—including putting his arm around an inmate’s waist,
and patting her backside—while on the same spectrum of sex‐
ual harassment and assault as Christensen’s conduct, are not
of the same degree as Christensen’s repeated and coercive
sexual abuse. See Vigo Cty., 905 F.3d at 1045 (distinguishing
between sexual harassment and the trauma of sexual assault).
Nevertheless, the record shows the jail responded equally
to these two incidents. After two investigations, the jail found
to keep weapons in their jail cells); Grieveson v. Anderson, 538 F.3d 763, 774
(7th Cir. 2008) (“One broad, vague statement about an occurrence affect‐
ing other inmates in a detention facility does not support the inference of
a ‘widespread’ custom.”); Estate of Moreland v. Dieter, 395 F.3d 747, 759–60
(7th Cir. 2005) (“[Three incidents of improper use of pepper spray] do not
amount to ‘a widespread practice’ that is ‘permanent and well settled’ so
as to constitute an unconstitutional custom or policy about which the sher‐
iff was deliberately indifferent.”).
Nos. 18‐1498, et al. 25
it “probably more likely” Jorgensen engaged in “inappropri‐
ate touching,” but it was unable to confirm the allegations. See
id. at 1047 (holding no breach of duty to plaintiff where “the
County investigated but could not substantiate one vague
complaint against Gray, and it warned him for making sexu‐
alized comments to a coworker”). Unverified allegations of
inappropriate touching of and humiliating comments toward
one inmate over a nine‐year period8 falls short of establishing
a widespread practice or custom. See id. at 1046–47 (“A busi‐
ness is not alerted to the possibility that an employee might
rape a member of the public by having faced the occasional,
but unfortunate, predicament of employee sexual harass‐
ment, including groping.”). We also note, once more, that
plaintiffs’ expert agreed the jail had a good record on this
topic, including when considering the Jorgenson incident.
The evidence gleaned from Jorgenson’s human resources
investigation runs into the same problems. The county does
not dispute Jorgenson’s comments to female coworkers were
inappropriate. And plaintiffs do not dispute those comments
went unreported until the N.S. investigation. Even if the
county was somehow responsible for Jorgenson’s boorish‐
ness, it was not deliberately indifferent to whether the prob‐
lem continued. When staff notified the county of Jorgenson’s
behavior, an investigation ensued, showing the county’s dili‐
gence, and Jorgenson resigned. See Vigo Cty., 905 F.3d at 1046
(“[A]ccepting resignations in lieu of firings [does not] reflect[]
the County’s deliberate indifference.”).
8 Plaintiffs’ expert, Eiser, reviewed the jail’s records from 2008 to the
date of plaintiffs’ trial in 2017.
26 Nos. 18‐1498, et al.
Our recent decision in Vigo County is instructive on the
quantum of proof necessary to establish a county’s custom or
practice of failing to prevent or respond to its employees’ sex‐
ual misconduct. In that case, the plaintiff, Doe, volunteered at
a park where Vigo County’s employee, David Gray, worked.
Doe alleged Gray locked her in the park’s restroom area and
forced her to perform oral sex and digitally penetrated her
vagina. Vigo Cty., 905 F.3d at 1041. Gray was charged with
rape, criminal confinement, and official misconduct, and he
was convicted of the latter two offenses. Id.
Doe sued Vigo County, alleging it failed to take seriously
or to address a risk of sexual violence posed by its employees.
Id. at 1044–45. The record contained no evidence of any
county employee having forced another to engage in a sexual
act or having confined an individual to harm her. Id. at 1045.
Instead, the record revealed “[s]ome involved sexual miscon‐
duct, but none resulted in coerced sexual activity, nor does
the record suggest that employee misconduct occasioned im‐
punity.” Id. at 1045.9 This court held that “a handful of inci‐
dents of misconduct by employees of Vigo County” over the
9In Vigo County, this court held the following offenses by county em‐
ployees, among others, were “not enough to establish a custom or practice
giving rise to Doeʹs injuries”: (1) a jail guard was prosecuted for having
sexual contact with an inmate at the county jail; (2) the county recorder
pleaded guilty to battery for groping an employee; (3) a parks mechanic
was accused of inappropriately cornering one coworker, telling another
that he wanted to have sex with her, and placing his hands on the latter’s
breast and down her pants; (4) another parks employee was fired for treat‐
ing coworkers poorly and making an “off‐color” comment to another em‐
ployee; and (5) a civil complaint was filed accusing a highway department
supervisor of sexual harassment. 905 F.3d at 1045. Specific to the public
park where plaintiff was assaulted, evidence showed that her attacker,
Nos. 18‐1498, et al. 27
past 20 years, “is not enough to establish a custom or practice
that gave rise to Doe’s injuries, nor can it support a finding of
indifference on the part of Vigo County officials.” Id.
Like Vigo County, in this trial plaintiffs failed to put forth
evidence of any jail employee engaging in criminal acts like
Christensen. The other allegations plaintiffs recount, though
contemptible, are different from the trauma plaintiffs experi‐
enced. See id. And because plaintiffs rely on indirect proof of
a widespread practice, they “must introduce evidence
demonstrating that the unlawful practice was so pervasive
that acquiescence on the part of policymakers was apparent
and amounted to a policy decision.” Dixon v. Cook Cty., 819
F.3d 343, 348 (7th Cir. 2016) (citation omitted). Nargis’s tier
talk, the tizzy email, rare and unreported staff comments, and
the Jorgenson investigation do not amount to evidence of per‐
sistent or pervasive sexual misconduct so obvious as to imply
acquiescence of county policymakers. Above all, plaintiffs of‐
fered no evidence county officials knew or should have
Gray: (1) acted inappropriately to a park visitor’s wife; and (2) received a
reprimand for inappropriate comments made to a coworker. Id.
Our dissenting colleague sees these previous incidents dispersed
“throughout the county,” but we see them differently. Four involved em‐
ployees from the same county parks department, and two involved the
same park and the same employee who assaulted the plaintiff in that case.
The decision also references that a parks department employee other than
Gray physically accosted one employee and sexually assaulted another.
Despite all of these incidents, this court held that the plaintiff failed to
show Vigo County’s deliberate indifference toward sexual misconduct. Id.
at 1046.
28 Nos. 18‐1498, et al.
known that any of its practices or customs would allow or en‐
courage—much less cause—Christensen to commit the ab‐
horrent acts which happened to plaintiffs.
Because the trial evidence contains no facts that plausibly
suggest a widespread practice of sexual assaults or acquies‐
cence to sexual conduct at Polk County Jail, the record does
not support a finding that the county maintained an implicit
policy that that served as the cause of their injuries.
3. Failure‐to‐train
Plaintiffs’ third liability theory is that the county’s training
“was entirely deficient and independently established delib‐
erate indifference.” This failure‐to‐train theory runs into dif‐
ficulties. On the evidence presented at trial, it allows a jury to
conclude liability outside the correct legal framework, and it
relies on inferences expressly rejected by the Supreme Court.
Further, the trial record does not show a direct causal link be‐
tween the alleged failure to train and their injuries as required
by Monell and its related case law.
On appeal of a jury verdict, we afford a generous standard
of review to avoid supplanting our view of the credibility or
the weight of the evidence for that of the jury. Massey v. Blue
Cross‐Blue Shield of Illinois, 226 F.3d 922, 925–26 (7th Cir. 2000)
(affirming judgment as a matter of law overturning verdict in
plaintiff’s favor because evidence failed to support the jury’s
finding of discrimination). But juries are not free to disregard
governing legal standards. On the question of municipal lia‐
bility, Monell and its limits control the calls juries are allowed
to make, including for failure‐to‐train claims. See, e.g., Canton,
489 U.S. at 399 (O’Connor, J., concurring in part and dissent‐
ing in part) (“Allowing an inadequate training claim such as
Nos. 18‐1498, et al. 29
this one to go to the jury based upon a single incident would
only invite jury nullification of Monell.”).
A failure‐to‐train claim fails without a pattern of similar
violations, unless that claim “fall[s] within the narrow range
of ‘single‐incident liability’ hypothesized in Canton.” Connick,
563 U.S. at 71–72 (“[A] pattern of violations [is] necessary to
prove deliberate indifference in § 1983 actions alleging failure
to train.”); see also Canton, 489 U.S. at 390 n.10. “A municipal‐
ity’s culpability for a deprivation of rights is at its most tenu‐
ous where a claim turns on a failure to train.” Connick, 563 U.S.
at 61 (citing Oklahoma City v. Tuttle, 471 U.S. 808, 822–23 (1985)
(plurality opinion) (“[A] policy of ‘inadequate training’” is
“far more nebulous, and a good deal further removed from
the constitutional violation, than was the policy in Monell.”).
Here, plaintiffs agreed there is no pattern of similar violations
at the jail to establish deliberate indifference.10 In so doing,
they deny proof of a fundamental element of failure‐to‐train
liability.
The degree of culpability in failure‐to‐train cases must
amount to deliberate indifference. Connick, 563 U.S. at 63. Alt‐
hough plaintiffs do not contend they proved a pattern of sim‐
ilar violations, they claim “myriad evidence” of inadequate
training supported a finding of deliberate indifference. See,
e.g., id. at 62. But plaintiffs’ contention here requires reliance
on the same chain of inferences rejected in Connick. In Connick,
10 See Appellees’ Br. at 45 n.10 (“Plaintiffs do not argue on appeal that
deliberate indifference is established here due to a pattern of similar past
incidents.”). Also, the district court held “that plaintiffs failed to put forth
sufficient evidence to support finding a pattern of constitutional violations
known to policy‐makers.” Opinion and Order at 7, J.K.J. v. Polk Cty., No.
15‐CV‐428 (W.D. Wis. Feb. 5, 2018), ECF No. 279.
30 Nos. 18‐1498, et al.
the Court analyzed whether failure‐to‐train liability could be
imposed on a district attorney’s office for a rogue prosecutor’s
deliberate violation of Brady v. Maryland, 373 U.S. 83 (1963).
The Court declined to conclude four prior Brady violations
was a pattern of similar violations. Connick, 563 U.S. at 54,
62‐63. Without such a pattern, the plaintiff could not prove
that the district attorney had actual or constructive notice of,
and was therefore deliberately indifferent to, a need for more
or different Brady training. Id. at 59, 61–63, 72. As a result, the
district court’s $14 million judgment against the district attor‐
ney was overturned. Id. at 72.
Here, we consider whether failure‐to‐train liability may be
imposed on the county for a rogue guard’s deliberate viola‐
tion of jail policy, county training, and Wisconsin law. We
follow Connick’s approach, which required incidents “similar
to the violation at issue” to “put [a policymaker] on notice that
specific training was necessary to avoid this constitutional vi‐
olation.” Id. at 62. “Without notice that a course of training is
deficient in a particular respect”—here, the prevention of sex‐
ual assaults—“decisionmakers can hardly be said to have de‐
liberately chosen a training program that will cause violations
of constitutional rights.” Id. at 62–63.
Under Connick, we conclude the evidence before the jury
could not, standing alone, have prompted notice that more or
different training was necessary to prevent similarly appal‐
ling violations. Jorgensen’s alleged actions and behavior were
wrong and degrading. Yet these twice investigated but unver‐
ified allegations, including placing his hands around N.S.’s
waist and touching her backside, along with Jorgenson’s
Nos. 18‐1498, et al. 31
other reproachable conduct, do not prompt notice that spe‐
cific training was necessary to avoid Christensen’s repeated
sexual assaults.
Because the trial evidence contained no instances or pat‐
tern of comparable actions, the county cannot be said to have
adhered to an approach that it knew or should have known
failed to prevent similar violations. Connick, 563 U.S. at 62;
Bryan Cty., 520 U.S. at 409. A failure‐to‐supervise claim fails
for the same reasons. The record does not establish a likeli‐
hood of the type of harm plaintiffs suffered to have obligated
the county to prevent its occurrence. See Vigo Cty., 905 F.3d at
1046 (holding same).
The dissent concludes three “primary points” prompted
notice that more training was required: (1) Nargis’s tier talk;
(2) information gleaned from the Jorgenson investigation; and
(3) irregular examples of inappropriate remarks by certain
guards over a twelve‐year period. But as offensive as they are,
none of these points involved the clandestine and conscience‐
shocking repeated sexual assaults of inmates. To demonstrate
deliberate indifference to the risk of constitutional violations,
Connick requires “[a] pattern of similar constitutional viola‐
tions by untrained employees.” Connick, 563 U.S. at 62 (empha‐
ses added). The record shows no pattern of violations similar
to Christensen’s conduct, and importantly, no dispute that
Christensen was trained that his conduct was illegal.11 In fact,
11 See Transcript of Jury Trial at 63–64, J.K.J. v. Polk Cty., No. 15‐CV‐428
(W.D. Wis. Feb. 1, 2017), ECF No. 258 (testimony of Christensen): “Q:
Now, did you tell Chief Deputy Moe, gee, I didn’t think I did anything
wrong because you didn’t train me? A: No sir.”
32 Nos. 18‐1498, et al.
at trial Christensen admitted he did not require more training
to know his conduct was a crime.12 For these reasons, we re‐
spectfully part ways with our dissenting colleague’s failure‐
to‐train evaluation.
To be sure, “[i]f a program does not prevent constitutional
violations, municipal decisionmakers may eventually be put
on notice that a new program is called for.” Bryan Cty., 520
U.S. at 407. To show the county ignored such notice, plaintiffs
must produce evidence “of a series of constitutional viola‐
tions from which deliberate indifference can be inferred.”
Estate of Novack ex rel. Turbin v. Cty. of Wood, 226 F.3d 525, 531
(7th Cir. 2000); see also Hahn v. Walsh, 762 F.3d 617, 637 (7th
Cir. 2014) (holding plaintiffs failed to “show[] that there was
a ‘series of unconstitutional acts from which it may be in‐
ferred that the [sheriff] knew [correctional center] officers
were violating the constitutional rights of [correctional center]
inmates and did nothing”) (quoting Estate of Novack, 226 F.3d
at 531). In failure‐to‐train cases, the constitutional violations
must be “similar to the violation at issue,” Connick, 563 U.S. at
63; here, sexual assaults.
Yet Christensen’s assaults on plaintiffs were both hidden
and unprecedented. Testifying on these facts, plaintiffs’
prison training expert agreed the county had a good record—
even factoring in Jorgenson’s misconduct—because of the
lack of incidents of sexual contact between guards and in‐
mates, let alone coercive assaults like Christensen’s. Cf.
12See Transcript of Jury Trial at 64, J.K.J. v. Polk Cty., No. 15‐CV‐428
(W.D. Wis. Feb. 1, 2017), ECF No. 258 (testimony of Christensen): “Q: You
didn’t try to tell the circuit court that you did it because you didn’t have
training and you forgot that it was a crime. You didn’t use that as a de‐
fense, did you sir? A: No, sir.”
Nos. 18‐1498, et al. 33
Woodward, 368 F.3d at 926 (involving systemic failure to en‐
force a jail suicide‐prevention program). There was no series
of sexual assaults at the jail from which the county was aware
its sexual assault training was inadequate, and chose to do
nothing in the face of such knowledge. See Hahn, 762 F.3d at
637 (holding seven inmate deaths in jail from different causes
than decedent’s “do not show that [sheriff] was aware of any
risk posed by [his] policies or that [sheriff] failed to take
appropriate steps to protect [decedent]”). Nor does the trial
evidence show “continued adherence” to training resulting in
flaws exposed by repeated wrongdoing. Bryan Cty., 520 U.S.
at 407. Connick presents stringent fault standards for a failure‐
to‐train claim, and admonishes that unless an exception
applies, failure‐to‐train liability is available only when “a pat‐
tern of similar violations” establishes a “policy of inaction.”
Connick, 563 U.S. at 72.13
Even if the trial record showed sufficient evidence the
county failed to train, that record still must contain proof of
causation. When evaluating Monell claims, the Supreme
Court has instructed courts to adhere to “rigorous” causation
requirements. Bryan Cty., 520 U.S. at 415.
The trial evidence showed that the “moving force,” id. at
404, behind the assaults on plaintiffs was not a failure to give
13 The dissent suggests that under Glisson “the key” in evaluating a
failure‐to‐train claim “is whether there is a conscious decision not to take
action,” irrespective of whether the record reflected examples of similar
constitutional violations. See Glisson, 849 F.3d at 381. But Glisson involved
a failure to enact a policy, not a failure to train employees. Id. at 382 (hold‐
ing an inmate healthcare provider could be liable under § 1983 for failing
to establish any protocol for the coordinated care of inmates with chronic
illnesses).
34 Nos. 18‐1498, et al.
jail guards additional training. Rather, it was a predatory
employee—who does not merit the term “guard”—who fur‐
tively abused his power and preyed upon inmates. From the
witness stand, Christensen confessed his behavior was irre‐
pressible: he admitted he was trained his actions were crimi‐
nal and violated jail policy; he agreed he did not require more
training to know his assaults were a crime; he knew he was
placing plaintiffs at risk; and he operated under the delusion
that his conduct was welcome, consensual, and a product of
“mutual voluntary attraction.” When juxtaposing these facts
with the absence of any similar violations at the jail,
Christensen—not a failure to train—was the moving force be‐
hind the deprivation of plaintiffs’ federal rights.
At trial and on appeal, plaintiffs have offered no more
than conclusory assertions that Christensen’s lack of training
caused their injuries. The trial record also does not reveal an
affirmative link between a failure to train and plaintiffs’ inju‐
ries. The dissent identifies this gap—“[w]hat was missing”—
and cites the need for more training on “the inherent vulner‐
ability” of the confinement setting, as well as the harm caused
by sexual abuse. “But showing merely that additional training
would have been helpful in making difficult decisions does
not establish municipal liability.” Connick, 563 U.S. at 68.
“Proving that an injury or accident could have been avoided
if an employee had had better or more training, sufficient to
equip him to avoid the particular injury‐causing conduct will
not suffice.” Id. (internal brackets and quotation marks omit‐
ted). “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.”
Canton, 489 U.S. at 392 (citing Tuttle, 471 U.S. at 823 (plurality
Nos. 18‐1498, et al. 35
opinion)). Even plaintiffs’ expert on prison training stand‐
ards, Eiser, conceded no proof exists that better or more train‐
ing could have dissuaded Christensen from his predatory
behavior and established causation.14
Our dissenting colleague warns of the risk of sexual
attacks at jails “employing male guards to supervise female
inmates.” But Connick requires more than “the broader con‐
text” of male guards supervising female inmates to establish
causation. It does not follow that all male guards will “so ob‐
viously make wrong decisions that failing to train them
amounts to ‘a decision by the [county] itself to violate the
Constitution.’” Connick, 563 U.S. at 71 (quoting Canton, 489
U.S. at 395). Connick sets the bar higher:
To prove deliberate indifference, Thompson
needed to show that Connick was on notice that,
absent additional specified training, it was
’highly predictable’ that the prosecutors in his
office would be confounded by those gray areas
and make incorrect Brady decisions as a result.
In fact, Thompson had to show that it was so
predictable that failing to train the prosecutors
amounted to conscious disregard for defendants’
Brady rights.
Connick, 563 U.S. at 71 (citing Bryan Cty., 520 U.S. at 409, and
Canton, 489 U.S. at 389) (emphases in original). This trial evi‐
dence does not clear that bar, and there are no gray areas to
the zero‐tolerance policy in question. A finding of liability on
a failure‐to‐train theory here cannot be reconciled with the
14 See Transcript of Jury Trial at 47–48, J.K.J. v. Polk Cty., No. 15‐CV‐428
(W.D. Wis. Feb. 1, 2017), ECF No. 264.
36 Nos. 18‐1498, et al.
reasoning of Connick, and would rest more on good policy
prescriptions than proof of municipal fault and causation.
And whether noteworthy recommendations for jail training
are legal requirements is something for the people of
Wisconsin and their elected officials to decide, rather than our
court in this context.
4. Single‐incident theory
In the absence of a pattern of similar assault violations, an‐
other liability theory is that the county failed to train its
guards in light of foreseeable sexual assaults. “In limited cir‐
cumstances, a local government’s decision not to train certain
employees about their legal duty to avoid violating citizens’
rights may rise to the level of an official government policy
for purposes of § 1983.” Connick, 563 U.S. at 61; see also Canton,
489 U.S. at 390 n.10. Canton left open the possibility that a
plaintiff might succeed in a failure‐to‐train claim without
showing a pattern of constitutional violations. See Connick,
563 U.S. at 63, 71–72 (describing as “single‐incident liability”).
The Supreme Court “hypothesized” in Canton that “a viola‐
tion of federal rights may be a highly predictable conse‐
quence” for failing to train police officers about constitutional
limits on the use of deadly force. Id. at 63–64, 71–72. In Canton,
the Court required that “for liability to attach in this circum‐
stance the identified deficiency in a city’s training program
must be closely related to the ultimate injury.” 489 U.S. at 391.
The single‐incident theory of liability described in Canton
“assumes … no knowledge at all” of the required constitu‐
tional standards. Connick, 563 U.S. at 67. Without specific
training, explained the Court, a police officer would not be
“equipped with the tools to interpret and apply legal princi‐
Nos. 18‐1498, et al. 37
ples.” Id. at 64. In Connick, the Court contrasted this hypothet‐
ical with an attorney asked to make a Brady determination. In
that situation, and in the absence of a pattern of similar Brady
violations, a district attorney “is entitled to rely” on prosecu‐
tors’ law school or bar exam training, ethical obligations, and
on‐the‐job experience, to deal with Brady decisions. Id. at
66‐67 (“A licensed attorney making legal judgments, in his ca‐
pacity as a prosecutor, about Brady material simply does not
present the same ‘highly predictable’ constitutional danger as
Canton’s untrained officer.”). “In light of this regime of legal
training and professional responsibility, recurring constitu‐
tional violations are not the ‘obvious consequence’ of failing
to provide prosecutors with formal in‐house training about
how to obey the law.” Id. at 66. Accordingly, the failure of
Connick’s office to alert its prosecutors of all reasonably con‐
ceivable legal duties did not subject it to failure‐to‐train liabil‐
ity, even if “additional training would have been helpful.” Id.
at 68.
Here, the proof at trial does not fit within Canton’s single‐
incident hypothetical. First, we cannot assume “no
knowledge at all,” because Christensen was trained and knew
that his actions were criminal. Given this knowledge and
training, Christensen’s assaults—in which he was a lone and
surreptitious actor—were not a “highly predictable conse‐
quence” (Bryan Cty., 520 U.S. at 409) of the county’s sexual
assault policies. Second, unlike the nuanced and compound
legal standards contemplated in Canton (involving constitu‐
tional limits on the use of deadly force) and Connick (involv‐
ing evidentiary disclosure obligations), the legal standard
here involved a direct, non‐discretionary rule: no sexual con‐
tact with inmates. Third, the record shows the county’s
guards—including Christensen—were trained on their legal
38 Nos. 18‐1498, et al.
and professional obligations to avoid the constitutional viola‐
tion at issue, sexual relationships with inmates. Christensen
was thus “equipped with the tools” to obey the law, as Canton
requires. Connick, 563 U.S. at 64. On this record, we decline to
find single‐incident liability.
5. Sufficiency of the evidence
Judgment as a matter of law should not be granted unless
the evidence, viewed in the light most favorable to the jury’s
verdict, shows that no rational jury could return a verdict
against the moving party. Woodward, 368 F.3d at 926. Alt‐
hough the district court found sufficient evidence to sustain
the verdict in Nargis’s “awareness of tier talk,” facts culled
from the Jorgenson investigation, and the single county‐spon‐
sored PREA training session, ultimately we disagree.
In our de novo review, plaintiffs failed to present enough
evidence to support their claims. Houskins, 549 F.3d at 493.
The facts do not show Christensen “was highly likely to inflict
the particular injury suffered by the plaintiff[s].” Bryan Cty.,
520 U.S. at 412 (emphasis in original). The trial record offers
no support that the same or similar constitutional injuries
were foreseeable. So far as the record reveals, the county had
no reason to believe, before the events giving rise to this case,
that its training or supervision of Christensen was inade‐
quate. Besides, there is no evidence of a pattern of constitu‐
tional violations making it “known or obvious” that
additional training or enhanced policies were necessary. Id. at
407, 410; see also Connick, 563 U.S. at 61. The trial record does
not contain evidence from which a rational jury could find the
county knew of, but was deliberately indifferent to, a risk that
inmates’ constitutional rights would be violated.
Nos. 18‐1498, et al. 39
Even if the record contained evidence of culpability, plain‐
tiffs needed to show a direct causal connection between a
county policy, practice, or custom and their injuries. Rice ex
rel. Rice v. Corr. Med. Servs., 675 F.3d 650, 675 (7th Cir. 2012)
(“[I]n other words that the policy or custom was the moving
force behind the constitutional violation.”). Given the absence
of causation evidence, the record can only be read that
Christensen—not any county policy or failure to train—was
the moving force behind plaintiffs’ injuries. To hold otherwise
under these facts would pin Christensen’s acts on the county
and allow for vicarious liability, contrary to Monell.
The requirements for imposing liability upon the county
for Christensen’s acts are ”rigorous.” Bryan Cty., 520 U.S. at
406, 415. Although we do not overturn a jury verdict lightly,
we must assure the jury had a legally sufficient evidentiary
basis for its verdict. Filipovich, 391 F.3d at 863 (reversing ver‐
dict awarding back pay and punitive damages because em‐
ployee failed to present legally sufficient evidence of age
discrimination). It is clear to us, see Houskins, 549 F.3d at 493,
that the trial evidence fails to satisfy the necessary elements
under Monell, Canton, and Connick of an imputable policy, cul‐
pability, and causation. In the end, these cases (and their re‐
lated authorities) control the calls a jury is allowed to make.
We therefore reverse the verdict against the county and re‐
mand for the entry of judgment as a matter of law in favor of
the county. Because we reverse the district court’s denial of
the county’s Rule 50(b) motion, we need not reach the
county’s Rule 59(a) motion.
As noted earlier, Christensen waived his appeal for judg‐
ment as a matter of law under Rule 50. So next we address
whether Christensen is entitled to a new trial under Rule 59.
40 Nos. 18‐1498, et al.
B. Christensen
Christensen appeals the jury verdict against him on three
grounds. First, he claims plaintiffs failed to show that he was
at fault for his actions. Second, he alleges the jury instructions
misstated the law by allowing a finding of liability without
proof of harm or causation. Third, he challenges the jury’s de‐
termination of damages.
1. Christensen’s fault
To establish an Eighth Amendment violation against
prison officials, “an inmate must show that a defendant was
deliberately indifferent to an excessive risk to inmate health
or safety.” Sinn v. Lemmon, 911 F.3d 412, 419 (7th Cir. 2018)
(citations omitted). This includes two elements: “the harm to
which the prisoner was exposed must be an objectively seri‐
ous one”; and judged subjectively, the prison official “must
have actual, and not merely constructive, knowledge of the
risk.” Id. (quoting Gevas v. McLaughlin, 798 F.3d 475, 480 (7th
Cir. 2015)). The first element is easily established here: sexual
assault against an inmate is always serious. The second ele‐
ment requires the official to “be aware of facts from which the
inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference.” Id. (quot‐
ing Farmer v. Brennan, 511 U.S. 825, 837 (1994)). Immunity pro‐
tects officials who act at the “hazy border” between the lawful
and the forbidden. Riccardo v. Rausch, 375 F.3d 521, 526 (7th
Cir. 2004) (citation omitted).
Christensen contends he did not know his sexual rela‐
tionships posed harm to anyone other than himself. As Chris‐
tensen sees it, he was the only person who stood to lose
anything (his job, his family, and his freedom) because of his
Nos. 18‐1498, et al. 41
behavior. These claims are as disingenuous as they are unper‐
suasive. There is no hazy border of the forbidden here: state
law and jail policy unequivocally prohibit any sexual contact
with inmates and afford no discretion on the matter.
Christensen testified he knew his conduct violated county
policies, he would be criminally prosecuted if caught, and his
actions were “not positive” for plaintiffs. These facts support
the jury’s finding that Christensen knew about a substantial
risk of harm to plaintiffs and disregarded that risk.
Rule 59 allows for a new trial if the jury’s verdict is
against the manifest weight of the evidence or if the trial was
in some way unfair to the moving party. Martinez, 900 F.3d at
844. Christensen quibbles that he never confessed to knowing
his actions were wrong, but only that his actions were “not
positive.” But the law requires only facts supporting a known
inference of wrongdoing, not an outright confession of mis‐
conduct. Here, a reasonable jury could and did find that
Christensen knew a substantial risk of harm shadowed his
actions and that he deliberately disregarded that risk. The dis‐
trict court did not abuse its discretion in refusing to grant a
new trial on this ground.
2. Jury instructions
Christensen next argues the district court refused to in‐
struct the jury on causation and harm, which he believes de‐
prived him of his ability to argue consent as a defense.
Because plaintiffs allegedly consented to his sexual advances,
he contends the jury should have been instructed to consider
whether he actually caused harm to plaintiffs.
After the second day of trial, the court proposed the fol‐
lowing instruction on harm and consent:
42 Nos. 18‐1498, et al.
If you determine that consent has a bearing on
your determination of harm, you may consider
the following in deciding whether plaintiffs’
sexual contacts with defendant Christensen
were consensual: the power disparity between
prisoners and correctional officers and how that
disparity may create a coercive environment.
Ultimately, the determination of whether there
was consent, and the broader question of
whether there was harm, is for you to deter‐
mine.
Order on Jury Instructions at 4–5, J.K.J. v. Polk Cty., No.
3:15‐CV‐428 (W.D. Wis. January 31, 2017), ECF No. 238.
The next day during the jury instruction conference for the
liability phase, the district court became skeptical, however,
that a harm instruction was required. When the court ques‐
tioned how a reasonable jury could conclude Christensen’s
conduct was not harmful, Christensen’s counsel replied that
a harm instruction “goes to consent and whether this was
something that ultimately caused the harm being alleged.”
Christensen’s counsel also argued the question of harm “is a
close call” and “one for the jury.” The court was not per‐
suaded and shifted the harm element from the liability phase
to the damages phase; reasoning this was “a compromise” be‐
tween its skepticism and Christensen’s request. Then, after
the jury found Christensen liable to plaintiffs, the court asked
whether Christensen planned to argue that his conduct was
not harmful during the damages phase. Christensen’s counsel
replied: “No, Your Honor.”
In denying Christensen’s motion for a new trial, the dis‐
trict court concluded that he had not preserved his objections
Nos. 18‐1498, et al. 43
to the removal of a harm instruction in either trial phase. We
agree Christensen waived his right to appeal for a harm in‐
struction during the damages phase. See United States v.
Kirklin, 727 F.3d 711, 716 (7th Cir. 2013) (“[C]ounsel’s affirm‐
ative statement that he had no objection to the proposed jury
instruction constitutes waiver of the ability to raise this claim
on appeal.”) (citation internal brackets omitted).
But Christensen did not waive his objection during the
liability phase. Twice Christensen requested a harm instruc‐
tion during the liability phase. Twice he explained that a harm
instruction implicates questions of causation and a defense of
consent. These statements sufficiently alerted the court to his
request and his argument, allowing us on appeal to reach the
merits of this claim.
We review Christensen’s challenge to the liability phase
instructions in two steps. In step one, “[w]e review de novo
whether jury instructions accurately summarize the law, but
give the district court substantial discretion to formulate the
instructions provided that the instructions represent a com‐
plete and correct statement of the law.” United States v. Daniel,
749 F.3d 608, 613 (7th Cir. 2014) (citation omitted). If the in‐
structions are legally accurate, in step two we review the dis‐
trict court’s phrasing of the instructions for abuse of
discretion. Id. We construe jury instructions “in their entirety
and not in artificial isolation,” reviewing whether the jury
“had understanding of the issues and its duty to determine
those issues.” Happel v. Walmart Stores, Inc., 602 F.3d 820, 827
(7th Cir. 2010) (citation omitted).
44 Nos. 18‐1498, et al.
Here, the instructions read:
To succeed on plaintiff’s Eighth and Fourteenth
Amendment Claim against defendant Christen‐
sen, plaintiff must prove each of the following
things by a preponderance of the evidence:
(1) plaintiff was incarcerated under con‐
ditions that posed a substantial risk of se‐
rious harm to her health or safety; and
(2) defendant was deliberately indiffer‐
ent to plaintiff’s health or safety.
With respect to the claim against defendant
Christensen the term “deliberately indifferent”
means that he actually knew of a substantial risk
of harm and that he consciously disregarded
this risk through his actions.
Closing Instructions at 3, J.K.J. v. Polk Cty., No. 3:15‐CV‐428
(W.D. Wis. February 2, 2017), ECF No. 243.
These instructions align with our court’s precedent
regarding deliberate indifference liability. See Sinn, 911 F.3d
at 419 (evaluating deliberate indifference standard as applied
to prison guards); Riccardo, 375 F.3d at 525 (same). Because the
instructions accurately summarize the applicable law, we
look to whether the district court’s phrasing of the instruc‐
tions constituted an abuse of discretion. “We will reverse at
this second step only if it appears both that the jury was mis‐
led and that the instructions prejudiced the defendant.”
United States v. Dickerson, 705 F.3d 683, 688 (7th Cir. 2013)
(citation and internal quotations omitted).
Nos. 18‐1498, et al. 45
In Christensen’s view, the instructions were misleading
because without an instruction on causation, harm, and con‐
sent, they reflected an “inadequate understanding of the
law.” We disagree. The instructions listed the essential ele‐
ments of deliberate indifference, instructed the jury on plain‐
tiffs’ burden to prove these elements, and provided guidance
on the meaning of a key term within these elements. Above
all, the phrasing of the instructions was uncomplicated and
substantively accurate. So Christensen has failed to show
abuse of discretion on this point.
Christensen next contends the instructions were “seri‐
ously prejudicial” because they “resulted in a finding of lia‐
bility without any consideration” of whether he caused
plaintiffs any harm. But this inaccurately conflates causation
and consent. Like any prison guard, Christensen was prohib‐
ited from having sex with inmates; plaintiffs’ constitutional
claims are based on this prohibition. Christensen admits to
committing these offenses. Plaintiffs’ alleged consent does not
make Christensen any less of a cause. To claim otherwise
assumes consent voids causation, which it does not.
For their part, plaintiffs testified they did not consent to
Christensen’s advances. Plaintiffs’ expert testified as to the se‐
rious mental health trauma plaintiffs suffered, and opined on
the amount of damages from their injuries. Christensen
offered no rebuttal. The jury’s verdict suggests it believed
plaintiffs and their expert over Christensen, and “[w]e will
not reweigh the evidence, or substitute our credibility assess‐
ments for that of the jury.” Pearson v. Welborn, 471 F.3d 732,
738 (7th Cir. 2006). Because the omission of a harm or a cau‐
sation jury instruction was neither misleading nor prejudicial,
46 Nos. 18‐1498, et al.
we conclude the district court did not abuse its discretion on
this point.
3. Damages
Last, we consider the soundness of the jury’s determina‐
tion of damages against Christensen, beginning with the com‐
pensatory damages award. Christensen argues the district
court should have granted a new trial because the jury
awarded identical compensatory damages to each plaintiff, so
the verdicts “lack a rational relationship with the evidence
contained in the record.”
“We review challenges to the propriety of a compensa‐
tory damages award for abuse of discretion.” Kapelanski v.
Johnson, 390 F.3d 525, 532 (7th Cir. 2004). To support his claim,
Christensen invokes Cygnar v. City of Chicago, 865 F.2d 827
(7th Cir.1989), in which our court affirmed the district court’s
award of a new trial on the issue of damages (with the option
of remittitur) because the compensatory damages award did
not bear a “reasonable relation to actual injury sustained.” Id.
at 848.
Cygnar does not help Christensen. In that case, a jury
awarded $55,000 to each plaintiff among thirteen plaintiffs. Id.
at 833. Christensen asserts we affirmed the grant of a new trial
in Cygnar solely because the jury gave identical awards to
each plaintiff. Not so: we affirmed a new trial in Cygnar be‐
cause the jury gave the same award per plaintiff despite the
plaintiffs’ “sharp variances” in the amount of economic harm
suffered among them. Id. at 848. In other words, because the
awards in Cygnar did not account for obvious differences in
harm between plaintiffs individually, we ruled that they did
not bear a reasonable relation to the actual injuries sustained.
Nos. 18‐1498, et al. 47
In contrast, plaintiffs here relied on expert testimony to
assert identical economic harms (psychological treatment
costs) for the similar noneconomic harms suffered of repeated
sexual assaults by Christensen. Christensen counters plain‐
tiffs suffered different pre‐ and post‐assault mental health
concerns, and he engaged in sexual contact with each plaintiff
with varying degrees of regularity. These “inconsistencies,”
Christensen argues, precluded the jury from awarding an
identical sum to J.K.J and M.J.J.
Christensen fails to explain how plaintiffs’ mental health
issues and the frequency of his assaults, which plaintiffs en‐
dured over years, necessarily translates into different dam‐
ages awards. He also fails to show the jury’s awards were not
“in line with other awards in similar cases,” in support of his
position. See Cygnar, 865 F.2d at 848. So the district court did
not abuse its discretion when it denied a new trial on the ques‐
tion of compensatory damages.
Christensen also contends the jury’s punitive damages
awards bear no relation to plaintiffs’ harms, necessitating a
new trial. But he only asserts “awards of punitive damages
cannot be unfettered from due process requirements,” and
fails to connect that proposition to this case.
We review challenges to punitive damages de novo when
constitutional issues are raised. Gracia v. SigmaTron Int’l, Inc.,
842 F.3d 1010, 1022 (7th Cir. 2016) (citations omitted). If no
constitutional issue is raised, our review of punitive damages
is for abuse of discretion. Id. (citation omitted). Whether
Christensen challenges the punitive damages award on con‐
stitutional or non‐constitutional grounds, the outcome is the
same.
48 Nos. 18‐1498, et al.
The Supreme Court has set forth three guideposts to as‐
sess a punitive damage award: (1) the degree of reprehensi‐
bility of the defendant’s conduct; (2) the disparity between the
harm suffered by the plaintiff and the punitive damages
award; and (3) the difference between the award in this case
and the penalties imposed in comparable cases. Id. at 1023 (cit‐
ing BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 574–75 (1996)).
First, we have no difficulty concluding that a reasonable
jury could find Christensen’s behavior was particularly rep‐
rehensible. On guidepost two, “[t]he constitutional limit on
punitive damages depends on the reprehensibility of the de‐
fendant’s conduct and the ratio between compensatory and
punitive damages.” Beard v. Wexford Health Sources, Inc., 900
F.3d 951, 955 (7th Cir. 2018). “[T]he more reprehensible a de‐
fendant’s conduct and the more easily a defendant can con‐
ceal violations, the higher the punitive damages.” Id. at 953.
These awards show the jury found Christensen’s conduct to
be especially blameworthy. Even so, the ratio between the pu‐
nitive and compensatory damages awards was less than two‐
to‐one, which is less than the four‐to‐one ratio “that might be
close to the line,” of constitutional impropriety. BMW of N.
Am., 517 U.S. at 581 (citation omitted). And under guidepost
three, Christensen has not offered any cases as comparators.
The district court applied these measures to the jury’s
verdict and concluded the punitive awards were reasonable
and comported with due process requirements. We agree and
see no reason to disturb either of the jury awards assessed
against Christensen.
Nos. 18‐1498, et al. 49
III. CONCLUSION
Based on this reasoning, we REVERSE the jury verdict
against the county and REMAND the case to the district court
to enter judgment as a matter of law for the county. The dis‐
trict court’s denial of Christensen’s motion for a new trial is
AFFIRMED.
50 Nos. 18‐1498, et al.
SCUDDER, Circuit Judge, dissenting in part. Two realities
combine to make this case very difficult—the respect the law
affords jury verdicts and the demanding standard for munic‐
ipal liability under 42 U.S.C. § 1983 and Monell v. New York
City Dep’t of Soc. Servs., 436 U.S. 658 (1978). While the majority
opinion marshals the best reasons for reversing the district
court’s judgment against Polk County, I respectfully dissent
from that portion of the opinion. When viewing the evidence
in the light most favorable to the jury’s verdict, I agree with
District Judge Conley that a reasonable jury could have found
that Polk County acted with deliberate indifference to the
need for more training and monitoring to prevent the sexual
assault of female inmates by male guards and in doing so
caused the injuries suffered by plaintiffs J.K.J. and M.J.J.
I
Monell unquestionably sets a high bar for municipal liabil‐
ity. A municipality may be liable under § 1983 only “if the
governmental body itself ‘subjects’ a person to a deprivation
of rights or ‘causes’ a person ‘to be subjected’ to such depri‐
vation.” Connick v. Thompson, 563 U.S. 51, 60 (2011) (quoting
Monell, 436 U.S. at 692). The majority is right that the evidence
does not support the imposition of Monell liability on the view
that the county had an express or implicit policy authorizing
the sexual assault of inmates. Nor is this a case where any sort
of county policy could be found on the basis of a pattern of
past incidents of sexual assaults of female inmates by male
guards.
But those are not the only avenues available for Monell li‐
ability. The Supreme Court has left room for liability prem‐
ised on a municipality’s failure to train its employees when
Nos. 18‐1498, et al. 51
“in light of the duties assigned to specific officers or employ‐
ees the need for more or different training is so obvious, and
the inadequacy so likely to result in the violation of constitu‐
tional rights, that the policymakers of the [county] can reason‐
ably be said to have been deliberately indifferent to the need.”
City of Canton, Ohio v. Harris, 489 U.S. 378, 390 (1989); see also
Board of Commʹrs of Bryan County v. Brown, 520 U.S. 397, 407
(1997) (explaining that “a plaintiff seeking to establish munic‐
ipal liability on the theory that a facially lawful municipal ac‐
tion has led an employee to violate a plaintiff’s rights must
demonstrate that the municipal action was taken with ‘delib‐
erate indifference’ as to its known or obvious consequences”)
(quoting Canton, 489 U.S. at 388).
On these principles, a county’s inaction, including its fail‐
ure to provide adequate training, can amount to “the func‐
tional equivalent of a decision by the [county] itself to violate
the Constitution,” when the county has notice that its pro‐
gram will cause constitutional violations. Connick, 563 U.S. at
61–62 (quoting Canton, 489 U.S. at 395 (O’Connor, J., concur‐
ring in part and dissenting in part)); see also Glisson v. Indiana
Depʹt of Corr., 849 F.3d 372, 381 (7th Cir. 2017) (observing that
the “key is whether there is a conscious decision not to take
action”). These “rigorous standards of culpability and causa‐
tion” safeguard against a municipality being held liable
“solely for the actions of its employees.” Bryan County, 520
U.S. at 405.
But rigorous does not mean impossible, and J.K.J. and
M.J.J. sought to carry their burden of proving Polk County’s
deliberate indifference to the need for more training and mon‐
itoring by focusing the jury on three primary points: the
county’s sparse training on its policies prohibiting the sexual
52 Nos. 18‐1498, et al.
abuse of inmates, a jail culture that denigrated women, and
the county’s deficient response to the 2012 incident involving
guard Allen Jorgenson and a female inmate. Each point war‐
rants careful consideration, with the controlling question be‐
ing whether any rational jury could have concluded that the
combined evidence supports a finding of liability against the
county. Setting aside a jury verdict on the basis of insufficient
evidence is serious business. See Woodward v. Corr. Med. Servs.
of Illinois, Inc., 368 F.3d 917, 926 (7th Cir. 2004).
A
Polk County’s Policies and Sexual Assault Training: All
agree that Polk County’s written policies categorically pro‐
hibit sexual contact with inmates. But so too should everyone
agree that policies cannot exist on paper alone. It is not
enough in this context to print the policy in a handbook, dis‐
tribute it to all jail guards, and tell them to follow it. Training
is critical precisely because it reinforces that strict adherence
to the policy is required and indeed what most matters. And
this is especially so in the context of a county employing male
guards to supervise female inmates—a circumstance that is
perhaps more the norm than the exception around the coun‐
try, but which inheres with meaningful risk. It takes little fore‐
sight to envision an instance where a guard grows too
comfortable, loses his better angels, and steps over the clear
line marked in Polk County’s written policies.
The trial evidence showed that Polk County’s training on
preventing the sexual harassment and abuse of inmates was
sparing at best. The training consisted almost exclusively of
informing guards of the easy and obvious—that the jail’s pol‐
icies prohibited sexual contact with inmates. What was miss‐
ing stands out. The jury heard no evidence of guards being
Nos. 18‐1498, et al. 53
informed of the inherent vulnerability the confinement setting
presents to female inmates. Nor was there evidence of the
county either explaining the serious harm that can befall an
inmate sexually abused by a guard or taking steps to train
guards to hold each other accountable to the county’s bright‐
line prohibition on any intimate contact with inmates. The
record shows that the only training dedicated to preventing
the sexual assault of inmates by guards came in a single ses‐
sion on the Prison Rape Elimination Act in 2014—well after
much of Darryl Christensen’s abuse of J.K.J. and M.J.J. had oc‐
curred.
At an even broader level there was no evidence that the
county included the female inmates themselves in its efforts
to prevent sexual abuse. The jury, for example, heard no ac‐
count of the county ensuring or reinforcing that inmates had
access to a safe and confidential channel through which to re‐
port inappropriate sexual conduct by jail guards.
Do not overread these observations as somehow prescrib‐
ing what the county had to do to avoid liability. The observa‐
tions serve only to show that the county’s training was so thin
that its inadequacy could have informed the jury’s ultimate
finding of deliberate indifference.
The Culture of the Polk County Jail: At trial the jury
learned that Captain Scott Nargis was aware of sexual com‐
ments made by male guards about and towards female in‐
mates. Nargis testified that he heard Christensen comment on
a female’s “rear end,” while also learning from others that
Christensen had made inappropriate comments about an in‐
mate’s breasts. Captain Nargis further testified that he himself
occasionally participated in so‐called “tier talk”—consisting
of “not necessarily flattering talk amongst co‐workers.” While
54 Nos. 18‐1498, et al.
the majority concludes that the tier talk of which Nargis was
aware was not sexual in nature, there is no way to view the
testimony about tier talk as compelling the jury to reach that
conclusion. Rather, the record shows that Nargis recalled in‐
stances in which the banter among the guards included sexual
comments about females within the facility, including at least
one female inmate. At the very least, a reasonable jury could
have found that the jail’s administrators did little to reinforce
the dignity and respect owed female (and indeed all) inmates
and instead seemed to enable a culture that condoned the sex‐
ual objectification of female inmates by male guards. Judge
Conley saw the evidence much the same way in denying the
county’s post‐trial motions for judgment as a matter of law
and a new trial.
Unfortunately, there is more. The record shows that the
jail’s culture extended beyond tier talk, as evidenced by the
allegations and resulting investigation of another guard, Al‐
len Jorgenson.
Polk County’s (Non) Response to the Jorgenson Incident:
In early 2012 jail administrators received a complaint that
Jorgenson had engaged in sexual contact—“inappropriate
touching” to be exact—with a female inmate. The allegations
also included concerns that Jorgenson used security cameras
to fixate on female inmates and told inmates to expose them‐
selves to him. Captain Nargis also learned that jail staff, as
part of screening outgoing inmate mail, had reported seeing
multiple references to Jorgenson’s inappropriate behavior to‐
ward female inmates and staff.
Captain Nargis and Chief Deputy Steven Moe responded
by conducting an investigation and concluding that Jorgen‐
Nos. 18‐1498, et al. 55
son had violated the jail’s policies and deserved a written rep‐
rimand. The investigation confirmed that Jorgenson used se‐
curity cameras on multiple occasions to focus on female
inmates longer than necessary and flirted with female inmates
generally. Though unable at first to substantiate that Jorgen‐
son engaged in sexual contact with the inmate in question (in
no small part due to the inmate’s denial that any sexual con‐
tact had occurred), Nargis and Moe nonetheless found that
Jorgenson pursued an improper personal relationship with
the inmate.
More then came to light when the inmate submitted a let‐
ter recanting her prior denial of sexual contact with Jorgen‐
son. The incidents described in the letter were detailed and
specific, to say nothing of disturbing, and served to put
Nargis and Moe on notice of allegations of repeated predatory
behavior by Jorgenson. The inmate recounted much more
than petty flirtation, reporting that “[t]here are many things
he [Jorgenson] has said and done that have been inappropri‐
ate in a sexual manner towards me,” including, for example,
telling me “he has wanted me to lift my shirt,” “seeing us in
the shower” and calling it a “nice show,” touching my “back
and butt,” “lean[ing] over the [work] cart to look down my
shirt,” saying “he wants me to ride topless in his boat,” and
instructing me to “keep quiet.”
The letter prompted Nargis and Moe to take a fresh look
at the matter. Sergeant Steven Schaefer spoke with the inmate
to verify her report and concluded that she may have been
telling the truth at that point. At trial Moe acknowledged that,
after the jail received the letter, he found it “more likely” that
Jorgenson had engaged in inappropriate or even illegal touch‐
ing of the inmate. In the end, however, the county left in place
56 Nos. 18‐1498, et al.
its original reprimand of Jorgenson, only then to see him re‐
sign a short time later when female coworkers complained
that he had made inappropriate comments towards them.
The majority opinion risks the misimpression that Jorgen‐
son’s conduct was isolated to putting his arm around an in‐
mate and patting her backside. The inmate’s letter put the
county on notice of much more, or at least a reasonable jury
could have so concluded. By its terms, the letter conveyed de‐
tailed allegations of repeated sexual misconduct, including
physical touching, by Jorgenson. While the majority might be
right to observe that the jury heard no direct evidence demon‐
strating that Captain Nargis or Chief Deputy Moe undertook
their investigation in bad faith, that observation answers the
wrong question. The jury was entitled to conclude that, sepa‐
rate and apart from whatever discipline was owed Jorgenson,
the county had a plain example of predatory sexual behavior
staring it in the face.
A broader takeaway was available to the jury on this evi‐
dence: apart from reprimanding Jorgenson, the county took
no action to reinforce its sexual assault policies with all other
male guards. The county did not, for example, seek to learn
why its policies aimed at protecting inmates from sexual as‐
sault and harassment were going unheeded or whether its
culture—including the sexual commentary about and to‐
wards female inmates—contributed to Jorgenson’s actions.
Nor did the county hold a formal training session, or even a
short informal meeting, to remind guards of the clear and ab‐
solute prohibition on any and all sexual contact with inmates.
Indeed, Sergeant Schaefer testified that, after the Jorgenson
incident, the guards received no training regarding inappro‐
priate sexual conduct towards inmates. The jury likewise
Nos. 18‐1498, et al. 57
heard no evidence of the county taking any steps to monitor
its male guards’ compliance with its policies.
To be sure, Polk County was not required to take any one
of these particular measures. See Glisson, 849 F.3d at 380. And
it emphatically is not our place to instruct a municipality on
how to implement its sexual assault policies. The essential ob‐
servation—the conclusion available to the jury—is much
more limited: the Jorgenson incident informed the county that
a guard had engaged in prohibited sexual conduct towards
female inmates. With that information in hand, the one option
unavailable to Polk County was the one it chose—doing noth‐
ing.
The majority relies extensively on our recent decision in
Doe v. Vigo County, Indiana, 905 F.3d 1038 (7th Cir. 2018) to
make the point that notice of a handful of prior incidents of
misconduct by employees does not support a finding of a mu‐
nicipality’s deliberate indifference to coerced sexual activity.
I see the cases as light years apart. There the record showed
one incident of sexual assault committed in a public park by
a park maintenance employee against a female volunteer, as
well as notice of past misconduct by county employees work‐
ing in a range of largely dissimilar positions throughout the
county, including as a highway supervisor, county recorder,
and jail guard. Id. at 1041, 1045. This evidence fell well short
of establishing Monell liability against Vigo County. See id. at
1045–46.
Here, though, the jury confronted the altogether different
setting of a jail and the conduct of male guards toward female
inmates. And here, but not in Vigo County, the jury heard evi‐
dence that Polk County, before learning of Christensen’s egre‐
gious wrongdoing, received clear notice of serious and
58 Nos. 18‐1498, et al.
repeated sexual misconduct carried out within the same jail
by an employee in precisely the same position as Christensen.
The context here matters for yet another reason. The
county’s decision to do nothing in response to the Jorgenson
incident occurred against the backdrop of its affirmative duty
to protect those inmates entrusted to its custody. See Estate of
Perry v. Wenzel, 872 F.3d 439, 453 (7th Cir. 2017) (“[W]hen the
State takes a person into its custody and holds [her] there
against [her] will, the Constitution imposes upon it a corre‐
sponding duty to assume some responsibility for [her] safety
and general well‐being.”) (quoting DeShaney v. Winnebago
County Depʹt of Soc. Servs., 489 U.S. 189, 199–200 (1989)). In
light of this duty, and with knowledge that its policies aimed
at preventing the sexual harassment and abuse of female in‐
mates by guards were being disregarded, Polk County could
not stand still. It was required to ensure that “a well‐recog‐
nized risk for a defined class of prisoners not be deliberately
left to happenstance.” Glisson, 849 F.3d at 382. A rational jury
could have found that the county fell short of doing so. Even
more specifically, the jury could have concluded that Polk
County was aware that its mere proscriptions on sexual con‐
tact between guards and inmates had proved insufficient at
preventing the sexual exploitation of at least one female in‐
mate by a male guard. Deciding to do nothing once it had that
information, a rational jury could have found, reflected delib‐
erate indifference on the county’s part. See Canton, 489 U.S. at
390.
B
The much harder question is the one that comes next un‐
der Monell—causation and, specifically, whether Polk
Nos. 18‐1498, et al. 59
County’s deliberate indifference was the “moving force” be‐
hind the repeated and undetected sexual assault of J.K.J. and
M.J.J. by Christensen. Monell, 436 U.S. at 694. That standard,
the Supreme Court has underscored, is demanding and re‐
quires proof of “a direct causal link between the municipal
action and the deprivation of federal rights.” Brown, 520 U.S.
at 404.
At trial J.K.J. and M.J.J. faced the difficult reality that Chris‐
tensen, despite knowing his conduct was a crime and violated
the jail’s policies, repeatedly raped and sexually assaulted
them anyway. And, as the majority is right to emphasize,
Christensen also went to lengths to conceal his conduct. These
facts make it tempting to view the plaintiffs’ injuries as the
result of a lone bad actor’s knowing decision to disregard the
law and the county’s policies.
The evidence permits another view, though. Christensen’s
actions cannot be separated from the broader context in which
they occurred: J.K.J. and M.J.J.—female inmates in Polk
County’s custody—faced a very real risk of sexual assault by
guards. Wisconsin law recognizes that risk by making it a
crime for a guard to engage in any sexual contact with an in‐
mate in any circumstance. See Wis. Stat. § 940.225(2)(h). For
their part, Polk County jail administrators likewise recog‐
nized the clear risk of inmates being sexually assaulted. More
to the point, following the Jorgenson investigation, Polk
County knew the risk was far from hypothetical. To the con‐
trary, the Jorgenson incident showed the county that the ex‐
istence of a written policy prohibiting sexual contact between
guards and inmates was insufficient to prevent the sexual har‐
assment and abuse of inmates by guards.
60 Nos. 18‐1498, et al.
And this is precisely where the jury could have deter‐
mined the county fell short. It neither conducted meaningful
training aimed at preventing and detecting sexual assault nor
monitored its employees’ compliance with its policies. On this
evidence, a rational jury could have found that the plaintiffs’
injuries were the “highly predictable consequence” of the de‐
liberate path of inaction that the county pursued by not
providing more training or monitoring to prevent the sexual
assault of female inmates. Connick, 563 U.S. at 64 (quoting
Brown, 520 U.S. at 409).
II
What worries me about today’s decision is that, as a very
practical matter, municipalities may conclude that there is not
much to be done to stop a rogue guard from engaging in se‐
cretive and heinous conduct in violation of a bright‐line pol‐
icy prohibiting sexual contact with inmates. That view would
be as mistaken as it is dangerous, for cities and counties have
a meaningful responsibility and role to play in preventing the
sexual abuse of inmates in their custody by the guards they
employ. That promise comes from the Eighth Amendment.
While not every incident of abuse will be preventable, a jail’s
decisionmakers are not free to choose—through their deliber‐
ate decisions on enforcement and training related to the jail’s
policies—to leave unaddressed a known and material risk of
sexual assault to inmates under the jail’s care.
Each of these observations follows from the evidence be‐
fore the jury and, in this way, can be seen as embodied in the
jury’s verdict against Polk County. I would leave that verdict
in place and therefore respectfully dissent from the court’s de‐
cision to the contrary.