Rachel Slabey v. Dunn County, Wisconsin

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
July 27, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2020AP877 Cir. Ct. No. 2017CV277

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

RACHEL SLABEY,

PLAINTIFF-APPELLANT,

V.

DUNN COUNTY, WISCONSIN, DENNIS P. SMITH, BRENDA LAFORTE,
MARSHALL L. MULTHAUF AND PAUL GUNNESS,

DEFENDANTS-RESPONDENTS,

DUNN COUNTY SHERIFF’S OFFICE, RYAN BOIGENZAHN, JOHN DOE
ONE, JOHN DOE TWO AND JOHN DOE THREE,

DEFENDANTS,

WISCONSIN COUNTY MUTUAL INSURANCE CORPORATION,

INTERVENOR.

APPEAL from a judgment of the circuit court for Dunn County:
MAUREEN D. BOYLE, Judge. Affirmed.
No. 2020AP877

Before Stark, P.J., Hruz and Seidl, JJ.

¶1 HRUZ, J. Rachel Slabey appeals a grant of summary judgment in
favor of Dunn County (“the County”), Dennis Smith, Brenda LaForte, Marshall
Multhauf, and Paul Gunness (collectively, the “Individual Defendants,” and
together with the County, the “County Defendants”), dismissing her claims under
42 U.S.C. § 1983 (2018).1 Slabey was sexually assaulted by correctional officer
Ryan Boigenzahn while she was incarcerated in the Dunn County Jail. The circuit
court dismissed Slabey’s complaint after determining there was no evidence upon
which a reasonable fact finder could rely to conclude the County Defendants were
deliberately indifferent to a substantial risk that Boigenzahn would sexually
assault an inmate.

¶2 Slabey challenges that determination on appeal, asserting it was
sufficient that the County had notice of prior disciplinary conduct involving
Boigenzahn and, therefore, the County must have known that its policies
forbidding fraternization and sexual contact with inmates were insufficient to
protect inmates. We disagree, as the prior conduct (for which Boigenzahn was
temporarily suspended) was not of a sexual nature. We also reject Slabey’s
arguments that the circuit court erred by dismissing her claims against Dunn
County Sheriff Dennis Smith in his personal capacity. Accordingly, we affirm.

BACKGROUND

¶3 Dunn County employed Boigenzahn as a correctional officer
between April 2011 and May 2016. While on duty at the Dunn County Jail on

1
All references to the United States Code are to the 2018 version unless otherwise noted.

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March 25, 2016, Boigenzahn entered Slabey’s dorm room and lingered there,
talking to her and her cellmate for a considerable period of time. He then sexually
assaulted Slabey while she was in the top bunk by touching her genital area
underneath her clothing. The general area of the dorm room was under video
surveillance, but the area where the assault occurred was outside of camera view.

¶4 Although Slabey did not immediately report the sexual assault,
Boigenzahn was terminated from his employment in May 2016 after receiving a
romantic note from another inmate without disclosing his receipt of that
communication. When Slabey learned of Boigenzahn’s termination, she reported
the sexual assault that had occurred in March. Boigenzahn was later charged in
Dunn County case No. 2016CF216, and he was convicted of second-degree sexual
assault by a correctional staff member, in violation of WIS. STAT. § 940.225(2)(h)
(2019-20).2

¶5 In 2017, Slabey commenced the present action against various
parties, including the County and Smith. Slabey sued Smith both in his personal
capacity and in his capacity as the sheriff. Chief deputy sheriffs Paul Gunness and
Marshall Multhauf, and the captain of the Dunn County Jail, Brenda LaForte, were
also sued in their personal and official capacities.

¶6 As relevant here, Slabey brought Eighth and Fourteenth Amendment
claims under 42 U.S.C. § 1983, alleging that: (1) the conditions of her
confinement exposed her to a substantial risk of harm; (2) the lack of appropriate
correctional policies and training amounted to deliberate indifference to her civil

2
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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rights; and (3) the failure to protect her from unreasonable harm constituted a
substantive due process violation. Slabey sought monetary damages, as well as
declarative and injunctive relief in the form of training and policy changes.

¶7 The County Defendants filed a summary judgment motion seeking
the dismissal of Slabey’s claims. The circuit court noted it was undisputed that
Boigenzahn had received training regarding sexual misconduct, and also that he
had been disciplined in a prior instance when he had violated the jail’s
fraternization policy in 2015. Nonetheless, the court determined that no
reasonable fact finder could conclude that the County Defendants should have
inferred “that Boigenzahn’s [prior violations] would escalate to sexual assault” or
that they demonstrated deliberate indifference to the risk that Boigenzahn would
commit sexual assault. The court also concluded that “[t]here is no evidence that
[the County’s] training practices were constitutionally deficient and that the
County was aware of the deficiency and failed to abate the deficiency.
Boigenzahn simply disregarded all of the training and policies when he made the
decision to assault Slabey.” Finally, the court determined there was no evidence
demonstrating that the Individual Defendants were personally involved in the
assault on Slabey, and, in any event, the County Defendants were entitled to
qualified immunity. Slabey now appeals.

DISCUSSION

¶8 We review a grant of summary judgment de novo. Chapman v.
B.C. Ziegler & Co., 2013 WI App 127, ¶2, 351 Wis. 2d 123, 839 N.W.2d 425.
Summary judgment must be granted if the pleadings, depositions, answers to
interrogatories, admissions and affidavits demonstrate that there is no genuine

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issue as to any material fact and that the moving party is entitled to judgment as a
matter of law. WIS. STAT. § 802.08(2).

¶9 We apply the same two-step summary judgment methodology as the
circuit court. Chapman, 351 Wis. 2d 123, ¶2. We first examine the pleadings to
determine whether a claim has been stated and whether the pleadings join issue.
Id. If so, we examine the parties’ evidentiary submissions to determine whether
there are any genuine issues of material fact. Id. Evidentiary materials, including
the inferences to be drawn from them, are viewed in the light most favorable to the
nonmoving party. AccuWeb, Inc. v. Foley & Lardner, 2008 WI 24, ¶16, 308
Wis. 2d 258, 746 N.W.2d 447.

I. Municipal Liability

¶10 Title 42 U.S.C. § 1983 authorizes private parties to bring suit against
government entities and officials who violate their federal constitutional rights
while acting under color of state law.3 Official-capacity suits against officers and
officials are generally treated as suits against the entity. Kentucky v. Graham, 473
U.S. 159, 165-66 (1985). A proper analysis of local government liability under
42 U.S.C. § 1983 requires that we consider two separate issues. We must first
ascertain whether the plaintiff’s harm was caused by a constitutional violation.

3
Title 42 U.S.C. § 1983 provides, in pertinent part:

Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in equity, or other
proper proceeding for redress.

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Collins v. City of Harker Heights, Tex., 503 U.S. 115, 120 (1992). If so, we must
then determine whether the municipality is responsible for that violation. Id.

¶11 There are two constitutional predicates upon which Slabey relies.
The first is the Eighth Amendment’s prohibition on cruel and unusual punishment,
which encompasses treatments that are incompatible with “evolving standards of
decency” or that involve the “unnecessary and wanton infliction of pain.” Estelle
v. Gamble, 429 U.S. 97, 102-03 (1976) (citations omitted). The second is the
Fourteenth Amendment’s guarantee that a person will not be deprived of life,
liberty or property without due process, which has been held to include a
guarantee that “when the State takes a person into its custody and holds [the
person] there against his [or her] will, the Constitution imposes upon it a
corresponding duty to assume some responsibility for [the person’s] safety and
general well-being.” DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489
U.S. 189, 199-200 (1989). As a practical matter, though, there is little difference
between the standards developed to effectuate these two constitutional provisions.
Mayoral v. Sheahan, 245 F.3d 934, 938 (7th Cir. 2001).

¶12 To demonstrate a constitutional violation related to the conditions of
her confinement, Slabey needed to present evidence at the summary judgment
stage that would allow a fact finder to reasonably conclude that one or more prison
officials displayed a “deliberate indifference” to a substantial risk of serious harm
to her. See Farmer v. Brennan, 511 U.S. 825, 828, 834 (1994). Deliberate
indifference requires: (1) an objective showing that the person was incarcerated
under conditions imposing a serious risk of harm; and (2) knowledge of, and
disregard for, the risk on the part of the defendants. Palmer v. Marion Cnty., 327
F.3d 588, 593 (7th Cir. 2003).

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¶13 Deliberate indifference requires more than a showing of mere
negligence. Farmer, 511 U.S. at 835. The second prong is subjective and
requires that “the official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists, and he [or she] must
also draw the inference.” Id. at 837. In other words, the official must have actual
knowledge of the risk of harm in order to be considered to have acted with callous
disregard for the prisoner’s rights. See Lewis v. Richards, 107 F.3d 549, 554
(7th Cir. 1997). To draw the required inference, there must be a strong likelihood,
rather than a mere possibility, that harm will come to the prisoner. Pinkston v.
Madry, 440 F.3d 879, 889 (7th Cir. 2006).

¶14 As a result, we must examine what was known to Dunn County jail
officials prior to Boigenzahn’s sexual assault of Slabey. It is undisputed that
Boigenzahn was, at the time of the assault, certified as a jail officer by the Law
Enforcement Standards Board. It is also undisputed that the jail had in place the
following written policies: (1) Policy No. 200-17-0, which prohibited correctional
staff from fraternizing or having a relationship with inmates (including personal
contacts and communication or social, physical or romantic relationships); and
(2) Policy No. DC1700.5, which prohibited sexual misconduct, including
“indecent, profane or abusive language or gestures, inappropriate visual
surveillance of inmates, making sexually offensive comments or gestures, [or]
engaging in physical conduct of a sexual nature with an inmate.”

¶15 Boigenzahn acknowledged as recently as December 2015 that he had
read and understood the sexual misconduct policy. He also received regular
training on jail policies. Indeed, Boigenzahn had received training in the days
immediately preceding his assault on Slabey that included a briefing on the
provisions of the Prison Rape Elimination Act of 2003 (“PREA”), a law intended

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to deter the sexual abuse of prisoners. See 34 U.S.C. §§ 30301-30309. The
briefing discussed four recent Wisconsin cases involving sexual contact between
correctional staff and inmates—all in other counties—and noted “[t]here aren’t
any reports of inmate-inmate sexual assaults or staff sexual misconduct” in Dunn
County. The materials reminded attendees that sexual contact between staff and
inmates was both a violation of administrative law and a criminal offense.

¶16 Slabey primarily focuses on “multiple allegations of Boigenzahn’s
policy violations” prior to the March 25, 2016 assault. On August 6, 2015, Beth
Mittelstadt, an inmate, informed sergeant Douglas Ormson that another
correctional officer was “too chummy with some of the females, especially Inmate
[Angela] Draxler.” She stated that she thought the officer was “in danger of
‘crossing the line.’” Ormson confirmed Mittelstadt was speaking about
Boigenzahn, and he asked her to elaborate.

¶17 Mittelstadt told Ormson that she had witnessed Draxler playfully
slap Boigenzahn on the chest while the two were speaking in the dorm.
Mittelstadt did not believe anything else had happened between them, but she said
that “if there was an opportunity where there were no cameras around she felt
something might happen.” Mittelstadt noted that Boigenzahn seemed willing to
talk to female inmates and speculated that because he was young, he might like
their attention. Ormson again asked if Mittelstadt had witnessed or heard rumors
of any type of sexual relationship between inmates and Boigenzahn, and she said
“she hadn’t but again said her feeling was that was a possibility if things
progressed.” She stated Boigenzahn was a good officer but appeared to be
“playing favorites” amongst the inmates.

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¶18 Following Mittelstadt’s report, Ormson discussed the matter with
sergeants Michael Owens and Rachel Vold. Owens advised Ormson that he had
filed an incident report on July 31, 2015, regarding a complaint by inmate Jana
Weaver-Blume. Weaver-Blume suggested that Owens “keep a close eye” on the
male correctional officers. Owens asked if an officer was developing a
relationship with an inmate, and Weaver-Blume responded, “[N]o, nothing like
that.” She instead told Owens that one of the officers—she later confirmed it was
Boigenzahn—was helping pass notes between a male inmate and a female inmate.
Weaver-Blume said she had witnessed Boigenzahn enter the female inmate’s cell,
which she thought was “weird.” He appeared to have something in his hand,
which he placed in the cell door, and the inmate picked it up. Weaver-Blume had
previously witnessed Boigenzahn place some request slips under the inmate’s cell
door with messages from a male inmate. Owens reviewed camera footage and
saw Boigenzahn enter the female inmate’s cell, but he did not notice anything out
of the ordinary. Owens also listened to the relevant inmates’ phone conversations
placed from the jail and determined that “[n]one of the lengthy conversations
revealed any indication that an officer was involved in helping them
communicate.” In all, Owens concluded the allegation was factually unsupported.

¶19 Sergeant Vold investigated Mittelstadt’s allegations of improper
conduct between Draxler and Boigenzahn. Vold began by reviewing two weeks
of camera footage. She discovered two incidents that raised concern. The first
incident occurred on July 29, 2015, when Boigenzahn was in the dorm providing
inmates with medications. Boigenzahn was outside of camera range for a few
minutes, then returned to the camera view when another officer entered with the
inmates’ breakfast. As Draxler grabbed her breakfast bag, Boigenzahn “reach[ed]

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out with his foot and step[ped] on her foot. She then step[ped] back on his foot. It
appear[ed] to be something done in a playful sort of manner.”

¶20 The second recorded incident that Vold observed occurred on
August 6, 2015, when Boigenzahn entered the dorm area with an officer in
training. After the other officer left, Boigenzahn propped the dorm door shut and
gestured with his head and right arm, as if motioning to someone to come in his
direction. Draxler then came running to Boigenzahn. It was unclear from the
video why Boigenzahn had motioned to Draxler, but as she walked away from him
she brushed his shoulder and chest area with her hand. Boigenzahn then stood in
the dorm for a few minutes before leaving.

¶21 Based upon the surveillance footage, captain LaForte directed Vold
to interview Draxler. Vold advised Draxler that there should never be physical
contact between inmates and jail staff. Upon further questioning, Draxler stated
that Boigenzahn made her feel uncomfortable. She told Vold that three months
earlier, she and Boigenzahn had accidentally bumped hands. Draxler apologized
to Boigenzahn and pulled her hand back, and Boigenzahn responded that “it was
alright” and he “didn’t mind.” Draxler stated that other female inmates had told
her Boigenzahn seemed to be “obsessed with her” and he would sometimes stand
and watch her sleep. She stated he sometimes “just lingered too long.” Vold
asked Draxler if there had ever been any conduct other than Boigenzahn’s
statements or watching her that made her feel uncomfortable, and Draxler said no.
Vold then forwarded her report to LaForte.

¶22 LaForte and chief deputy Gunness interviewed Boigenzahn on
August 10, 2015, about the allegations and investigation. Boigenzahn initially
denied passing notes between inmates, but he admitted to doing so when he was

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reminded that being untruthful would result in termination. Boigenzahn was
shown the surveillance footage of his interactions with Draxler. Boigenzahn
denied engaging in inappropriate conduct with Draxler and explained he tried to
have cooperation or a rapport with inmates, but he stated he understood he needed
to be sterner if an inmate were to touch him. Boigenzahn stated he made a “dumb
mistake” passing the note and it would not happen again.

¶23 Following the investigation, Gunness concluded that Boigenzahn
had violated the jail’s fraternization and unbecoming conduct policies by his
interactions with Draxler on July 29 and August 6, 2015, and by his passing of
notes from a male inmate to a female inmate. As a result, he was suspended for
three days without pay on August 26, 2015. Boigenzahn was also warned that if
he failed to “observe all the rules and procedures of [his] job,” he would “subject
[him]self to further disciplinary action, including discharge and termination of
[his] employment with the County.” It is undisputed that no misconduct was
observed by, or reported to, jail officials either prior to the July 29, 2015 incident
or after Boigenzahn’s discipline in August 2015.

¶24 In Dennis Smith’s eighteen years as Dunn County sheriff, there had
not been any prior incidents of “sexual interaction between a [correctional officer]
and an inmate.” A correctional officer had previously been found to have violated
the fraternization policy based upon intimate conduct with an inmate who had
been released, but no misconduct occurred at the jail. That officer resigned rather
than face discipline. Similarly, two female correctional officers had also
previously resigned for violations of the fraternization policy. One officer
resigned after an investigation into note passing revealed that she had been visiting
a former Dunn County inmate after he was transferred to another county’s jail.
The other officer resigned after she was discovered to have been in a car with an

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inmate in the jail’s parking lot. Smith testified that violations of the fraternization
policy usually result in termination, but that he considered “the whole
circumstances” when determining the appropriate punishment.

¶25 The circuit court correctly concluded that there was insufficient
evidence to support a determination in Slabey’s favor under the “deliberate
indifference” standard. Taking all of the facts in the light most favorable to
Slabey, no reasonable fact finder could conclude there was a serious risk that
Boigenzahn’s conduct would escalate to the sexual assault of an inmate. Although
Mittelstadt had vaguely alluded to the possibility that Boigenzahn’s conduct might
cross a line, and Weaver-Blume suggested that staff “keep a close eye” on
Boigenzahn, their comments did not suggest or indicate any sexual misconduct by
Boigenzahn. Indeed, both inmates denied that they were aware of any improper
relationships between inmates and jail staff. Jail officials were aware that
Boigenzahn was somewhat flirtatious and would linger around female inmates,
making them feel uncomfortable. Jail staff investigated these inmate concerns and
discovered two recorded instances of seemingly “playful” physical contact
between Draxler and Boigenzahn—conduct that, though proscribed, was not
inherently sexual in nature, and certainly not akin to the assault Boigenzahn
ultimately inflicted upon Slabey.

¶26 Slabey contends that the physical contact between Draxler and
Boigenzahn was, in fact, a violation of the jail’s sexual misconduct policy. She
alleges that the only reason there was no documentation of sexual misconduct
violations was because “Dunn County minimized and deliberately
mischaracterized Boigenzahn’s conduct.” As Slabey notes, though, the policy
defined sexual misconduct in broad terms, prohibiting not just sexual contact but
also a range of behaviors including “inappropriate remarks, sexualized

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name-calling, correspondence, conversations, [and] inappropriate displays.” That
some of Boigenzahn’s conduct could arguably be categorized as “sexual
misconduct” for purposes of a jail policy is not a fact from which a reasonable fact
finder could conclude that the County was deliberately indifferent to a serious risk
that Boigenzahn would commit sexual assault against an inmate.

¶27 Moreover, it is undisputed that Boigenzahn was punished for his
fraternization violations. He was suspended for three days without pay and
reminded of his obligations under jail policy. After his suspension, there were no
further instances of misconduct observed by, or reported to, jail officials.
Boigenzahn also continued to receive various training, including watching a
PREA training video and completing a quiz in November 2015, reading and
acknowledging his understanding of the sexual misconduct policy in
December 2015, and attending a meeting with the County’s corporation counsel
that included PREA training in March 2016. Even assuming that jail officials did
view Boigenzahn’s conduct as creating a substantial risk of harm to female
inmates, liability cannot be imposed “if they responded reasonably to the risk,
even if the harm ultimately was not averted.” See Farmer, 511 U.S. at 844.

¶28 Slabey highlights several things she believes jail officials could have
done to prevent her sexual assault. For example, she contends jail officials could
have increased Boigenzahn’s supervision, more thoroughly investigated his
conduct, or terminated his employment. But the question is not whether jail
officials might have taken some other course of action that would have ensured
Slabey’s safety. Rather, we assess whether the actions the officials actually took
evidenced a deliberate indifference to a serious risk of harm of which they were
aware. Merely pointing out that more could have been done does not necessarily
demonstrate that the measures the County did take were unreasonable.

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¶29 Slabey also notes that Boigenzahn did, in fact, engage in further
flirtatious and sexual misconduct with an inmate after he was suspended in
August 2015, but before her assault. During his deposition, Boigenzahn
acknowledged flirting with a female inmate, which eventually resulted in her
sending him topless photographs after she was released. There is no evidence,
however, that the County was or should have been aware of this incident.
Accordingly, it is not evidence from which a reasonable fact finder could conclude
the County was deliberately indifferent to any serious risk of harm that
Boigenzahn presented.

¶30 Circumstantial evidence can be used to establish subjective
awareness and deliberate indifference. Thomas v. Cook Cnty. Sheriff’s Dep’t,
604 F.3d 293, 302 (7th Cir. 2010). But here, even the circumstantial evidence
Slabey has offered is insufficient to support a determination that the County was
deliberately indifferent to a substantial risk that Boigenzahn would sexually
assault an inmate. Nor is this a case where the “single-incident” theory of liability
is appropriate, and no risk of constitutional harm was “so obvious,” as amicus
Wisconsin Association for Justice contends. Only in rare instances can liability
based on a failure to train or supervise be predicated on an obvious risk without
proof of a pre-existing pattern of violations. See Connick v. Thompson, 563 U.S.
51, 64 (2011).

¶31 Slabey argues that this case is factually analogous to two federal
court decisions which upheld jury verdicts finding municipal liability based upon
sexual assaults of inmates by correctional staff. See Cash v. County of Erie, 654
F.3d 324 (2d Cir. 2011); J.K.J. v. Polk Cnty., 960 F.3d 367 (7th Cir. 2020) (en
banc), cert. denied sub nom., Polk Cnty., Wis. v. J.K.J., 141 S. Ct. 1125 (2021).
In Cash, the Second Circuit determined that there was sufficient evidence of

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deliberate indifference to the risk of a sexual assault based on a single prior
allegation of sexual contact between a correctional officer and an inmate
approximately three years prior. Cash, 654 F.3d at 336, 345. The court held that
this prior instance of alleged sexual contact should have “alerted defendants that
they could not rely simply on [correctional officers’] awareness of a no-tolerance
policy to deter sexual misconduct.” Id. at 336. Moreover, the court held that even
though the allegation may have involved less-egregious sexual contact than rape,
the allegation was sufficient to demonstrate to correctional officials that their
policies were inadequate to safeguard the inmates under their care. Id. at 337.
The court noted expert testimony adduced at trial that highlighted the risk of
“unmonitored one-on-one interactions” between male correctional staff and female
inmates. Id. at 338.

¶32 Cash is factually distinct from Slabey’s case for two material
reasons. First, Cash involved prior allegations of sexual behavior by correctional
officers in the respective jail, one of whom later sexually assaulted an inmate.
Cash, 654 F.3d at 336-37. The investigation revealed that “at best,” a female
inmate repeatedly engaged in sexual exhibitionism in front of various correctional
officers, all of whom failed to report the activity and some of whom may have
paid for it. Id. at 336. Despite the inmate’s “dubious credibility,” the
investigators thought it likely that prohibited sexual activity occurred. Id. Unlike
in Cash, Slabey has not identified any previous instances of sexual behavior in the
Dunn County Jail. As previously discussed, none of the previous instances of
fraternization by other correctional officers in the Dunn County Jail involved
sexual behavior within the jail. Moreover, Boigenzahn’s previous conduct—note
passing, playfully touching his foot to an inmate’s foot, and allowing an inmate to
brush his chest—was not inherently sexual in nature.

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¶33 Cash is also distinguishable because the plaintiff in Cash presented
expert testimony regarding the defendants’ need to prohibit unmonitored
one-on-one interactions between correctional officers and inmates, and how the
previous allegations of sexual activity should have alerted the defendants that
current policies were inadequate. Id. at 338. Slabey, however, did not submit any
expert evidence in opposition to summary judgment that the County’s policies
were inadequate to prevent sexual assault. Nor did she submit any evidence that
the previous fraternization allegations in the County should have alerted the
County to any alleged inadequacies in the County’s policies involving sexual
misconduct.

¶34 J.K.J. also involved circumstances markedly different from those
here. In J.K.J., two female plaintiffs endured repeated sexual assaults at the hands
of Polk County correctional officer Darryl Christensen over the course of three
years. J.K.J., 960 F.3d at 370-71. The court determined that sufficient evidence
existed to “conclude that Polk County deliberately chose a path of inaction when
that option was off the table.” Id. at 384. In reaching this conclusion, the court
discussed the inherent risk of sexual assault that female inmates face, but it also
emphasized Polk County’s awareness of sexual misconduct happening within its
jail, rendering the risk of sexual assault “far from hypothetical.” Id. at 382.

¶35 Specifically, the jury in J.K.J. heard testimony regarding the jail’s
culture and how a captain of the jail—someone responsible for creating and
implementing the jail’s policies and standards—knew about, and participated in,
inappropriate talk about female inmates. Id. The jury also heard testimony that
Polk County knew of a different correctional officer who sexually exploited a
female inmate by watching her shower, asking her to expose herself, and forcibly
touching her in a sexual manner. Id. In response to the officer’s conduct, Polk

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County issued a written reprimand, but it assured him that it was “not a big deal.”
Id. at 383. With knowledge of sexual exploitation in the jail, Polk County “did not
change its sexual abuse policy, institute a training, inquire of female inmates, or
even call a staff meeting.” Id. Even if Polk County believed its policies and
training to be adequate—and an expert testified they were not—the court
concluded that such belief was untenable after learning about the other
correctional officer’s sexual misconduct. Id.

¶36 Unlike in J.K.J. where the correctional officer’s assaults persisted
for three years without detection or prevention, id. at 371, Slabey has not
identified any previous sexual abuse by Boigenzahn toward her or any other
inmate. Moreover, at the same time the sexual assaults occurred in J.K.J., Polk
County knew of another correctional officer engaging in sexual misconduct by
watching an inmate shower and forcibly touching her waist and buttocks. Id. at
372-73, 382. Again, Slabey did not identify any previous instances of known
sexual abuse or misconduct by a correctional officer in Dunn County. Finally, the
court in J.K.J. relied on the jail’s culture and how sexually inappropriate banter
between correctional officers—conduct known to Polk County—demonstrated an
undeniable risk that a correctional officer would grow too comfortable and step
over the clear line in the written policies. Id. at 382. Slabey did not submit any
analogous evidence of a known, concerning culture among correctional officers in
Dunn County that would be conducive to an officer violating written policies
against sexual misconduct so as to lead to the strong likelihood that Boigenzahn
would commit a sexual assault.

¶37 Slabey next argues the circuit court erred by making findings on
disputed issues of fact. She fails to highlight, however, any disputed factual
issues, citing only to her memorandum opposing the summary judgment motion,

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which is not evidence. See State v. Bean, 2011 WI App 129, ¶24 n.5, 337 Wis. 2d
406, 804 N.W.2d 696 (“Trial court briefs are not evidence.”). We do not consider
issues supported by only general statements. State v. Pettit, 171 Wis. 2d 627, 646,
492 N.W.2d 633 (Ct. App. 1992). In any event, as noted above, our review on a
grant of summary judgment considers the facts in the light most favorable to the
non-moving party, AccuWeb, Inc., 308 Wis. 2d 258, ¶16, which we have done
here. On this record, Slabey’s claim fails as a matter of law.

¶38 In Monell v. Department of Social Services of City of New York,
436 U.S. 658, 690-91 (1978), the Supreme Court concluded that municipalities
and other local government units can be liable under 42 U.S.C. § 1983, though not
under a respondeat superior theory. All told, to establish the County’s liability,
Slabey must prove that: (1) she suffered a deprivation of a federal right; (2) as a
result of either an express municipal policy, widespread custom, or deliberate act
of a decision-maker with final policy-making authority for the County; which
(3) was the proximate cause of her injury. See Ienco v. City of Chicago, 286 F.3d
994, 998 (7th Cir. 2002).

¶39 A substantial portion of Slabey’s arguments is directed toward
establishing that there was an informal custom or policy of ignoring dangers to
female inmates, so as to make the County liable under 42 U.S.C. § 1983.
Although Slabey undoubtedly suffered serious harm during her confinement, she
has not presented facts upon which a reasonable fact finder could conclude that
officials acted with deliberate indifference to the risk of that harm. Accordingly,
the County cannot be deemed responsible for the alleged Eighth and Fourteenth
Amendment violations.

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No. 2020AP877

II. Personal Liability of Sheriff Dennis Smith

¶40 Slabey next argues that Smith is personally liable because he
participated in Boigenzahn’s discipline and supervision. When a government
official is sued in his or her official capacity, the suit is treated as though it is
against the municipality. Selerski v. Village of W. Milwaukee, 212 Wis. 2d 10,
17, 568 N.W.2d 9 (Ct. App. 1997). “Personal-capacity suits, on the other hand,
seek to impose individual liability upon a government officer for actions taken
under color of state law.” Hafer v. Melo, 502 U.S. 21, 25 (1991). In a suit
seeking the imposition of personal liability, the monetary damages are paid by the
individual, not the government. Id. at 27, 30-31. Accordingly, a plaintiff need not
establish that the governmental entity’s policy or custom played a role in the
violation of federal law, unlike when a plaintiff brings an official-capacity suit.
Id. at 25. A plaintiff must establish, however, that the individual “had some
personal involvement in the alleged constitutional deprivation.” Williams v.
Shah, 927 F.3d 476, 482 (7th Cir. 2019). An individual cannot be personally
liable under a theory of respondeat superior. Arnett v. Webster, 658 F.3d 742, 757
(7th Cir. 2011).

¶41 Oddly, Slabey’s argument regarding Smith’s personal liability
focuses almost exclusively on whether Smith had policymaking authority and
what he did with that authority—a question that is irrelevant to a personal-capacity
claim.4 The cases Slabey cites involve a government’s liability under Monell, not
the personal liability of the government actor. See Ball v. City of Indianapolis,

4
In particular, Slabey notes that Smith was “directly and personally involved in the
[C]ounty’s decision not to terminate Boigenzahn in August 2015 and not to modify Boigenzahn’s
work schedule or increase his level of supervision upon his return to work.”

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No. 2020AP877

760 F.3d 636, 643 (7th Cir. 2014); Valentino v. Village of S. Chicago Heights,
575 F.3d 664, 675 (7th Cir. 2009). If Smith is a policymaker for the County, as
Slabey contends and the County Defendants concede, then her claim truly does lie
against the County, not Smith personally. See Bradley v. Village of Univ. Park,
Ill., 929 F.3d 875, 885 (7th Cir. 2019). Accordingly, her claim on this point fails.

III. Qualified Immunity

¶42 Slabey also appeals the circuit court’s application of qualified
immunity. Qualified immunity shields public officials from liability for civil
damages if their actions were objectively reasonable, as evaluated in the context of
“clearly established” legal rules at the time of the conduct in question. Poe v.
Leonard, 282 F.3d 123, 132 (2d Cir. 2002). Qualified immunity is purely a
function of personal liability; the Supreme Court has authoritatively determined
that governmental bodies, as opposed to officials, do not enjoy qualified immunity
from actions seeking damages. Hedge v. County of Tippecanoe, 890 F.2d 4, 8
(7th Cir. 1989).

¶43 Thus, to the extent the circuit court concluded the County was
entitled to qualified immunity, we agree with Slabey and the amicus Wisconsin
Association for Justice that such a determination was in error. However, because
there was insufficient evidence to create a triable issue regarding the County’s
liability for Slabey’s assault under 42 U.S.C. § 1983, the court’s error does not
undermine the validity of the court’s grant of summary judgment.

¶44 To the extent Slabey argues the circuit court erred by determining
that the Individual Defendants were entitled to qualified immunity, we have no
need to reach that issue. Again, to establish a personal-capacity claim, the plaintiff

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No. 2020AP877

must allege the individual “had some personal involvement in the alleged
constitutional deprivation.” Shah, 927 F.3d at 482.

¶45 Slabey has attempted—albeit unsuccessfully—to demonstrate only
that Smith bore some personal culpability in the circumstances that led to her
sexual assault. She has not provided any basis on appeal to conclude that any of
the other Individual Defendants participated in the alleged deprivation of her
constitutional rights. Accordingly, even if the circuit court’s qualified immunity
determination was in error, Slabey’s failure to advance any argument that the
remaining government officials were personally involved in the relevant events is
fatal to her claims. We therefore need not determine whether the court properly
applied qualified immunity to the Individual Defendants.

By the Court.—Judgment affirmed.

Not recommended for publication in the official reports.

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