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  • January 27, 2023

    Failure to Fire Guard Who Later Assaulted Inmate Not Sufficient for Section 1983

    A county jail inmate sexually assaulted by a guard who was disciplined but not fired for previous fraternization with inmates failed to show that the county’s conduct was the moving force behind the assault, the Wisconsin Supreme Court has ruled.

    Jeff M. Brown

    A Male Prison Guard In A Ball Cap And Aviator Shades Stands In the Foreground, With A Cell And Orange-clad Inmates Out of Focus In The Background

    Jan. 27, 2023 – A county jail inmate sexually assaulted by a guard who was disciplined but not fired for previous fraternization with inmates failed to show that the county’s conduct was the moving force behind the assault, the Wisconsin Supreme Court has ruled.

    In Slabey v. Dunn County, 2023 WI 2 (Jan. 18, 2023), the supreme court specifically held (5-2) that the inmate did not meet the standard for a constitutional tort, under 42 U.S.C section 1983, based solely on the county’s failure to fire the guard.

    Chief Justice Annette Ziegler wrote the majority opinion, joined by Justice Patience Roggensack, Justice Rebecca Bradley, Justice Rebecca Dallet, and Justice Brian Hagedorn. Justice Jill Karofsky dissented, joined by Justice Ann Walsh Bradley.

    Guard Acknowledged Policies

    In April 2011, Dunn County hired Ryan Boigenzahn as a correctional officer (CO) at the county jail.

    Jeff M. Brown Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

    The county required Boigenzahn to undergo training on the requirements of the federal Prison Rape Elimination Act of 2003 (PREA). During the time he worked for the county, Boigenzahn certified on eight occasions that he had reviewed the county’s policies, including policies on fraternization, sexual misconduct, and the PREA.

    Passing Notes

    In July 2015, one of Bogienzahn’s fellow COs told Sergeant Michael Owens that an inmate, J.B., had said that the jail staff should “keep a close eye on [the] male COs.”

    When Owens interviewed J.B, she said that she’d seen Boigenzahn passing notes between inmates. Owens asked J.B. if Boigenzahn was developing a relationship with an inmate; J.B. said no.

    In August 2015, another inmate, B.M., told Sergeant Douglas Ormson that Boigenzahn was too friendly with some of the female inmates. B.M. told Ormson that she thought something might happen between Boigenzahn and a female inmate if there were no cameras around.

    A third sergeant, Vold, reviewed two weeks’ worth of video surveillance footage. He saw Boigenzahn playfully touch feet with an inmate named A.D. and saw A.D. brush Boigenzahn’s chest with her hand as she walked away from Boigenzahn.

    As She Was Sleeping

    When Vold interviewed A.D., she said that Boigenzahn made her feel uncomfortable. A.D. also said that other female inmates told her that Boigenzahn appeared to be obsessed with her and said they had seen Boigenzahn watching her as she was sleeping.

    The sheriff determined that Boigenzahn had violated the county’s policies against fraternization and unbecoming conduct. He suspended Boigenzahn for three days without pay, beginning Aug. 26, 2015.

    Nine months later, A.D. told Vold that Boigenzahn had accepted a note containing sexual content from an inmate named B.S.

    Boigenzahn admitted receiving the note from B.S. On May 19, 2016, the county placed Boigenzahn on administrative leave. Twelve days later, the county fired Boigenzahn.

    Lawsuit Follows Sexual Assault

    A subsequent investigation conducted by the sheriff concluded that in March 2016, Boigenzahn had put his hand down the pants of a female inmate, Rachel Slabey, as she was lying on the top bunk of a bunk bed in an area of the dorm that was shielded from the view of surveillance cameras.

    In November 2017, Slabey sued Dunn County under 42 U.S.C. section 1983. She claimed that the county had violated her rights under the Eighth and Fourteenth Amendments by acting with deliberate indifference to her safety.

    The Dunn County Circuit Court granted the county’s motion for summary judgment. The Wisconsin Court of Appeals affirmed.

    Slabey appealed.

    A High Bar for Plaintiff

    Slabey argued that the county had caused her constitutional deprivation by failing to:

    • investigate B.M.’s claim that Boigenzahn’s conduct might cross a line;

    • properly discipline Boigenzahn; and

    • adequately supervise Boigenzahn.

    Chief Justice Ziegler explained that Slabey faced a high bar in making a successful claim. Under U.S. Supreme Court precedent, Ziegler noted, Slabey must demonstrate that the county’s omissions were the “moving force” behind the constitutional deprivation.

    Specifically, Ziegler pointed out, Slabey must show that the assault was:

    • the result of a county policy, custom or decision;

    • taken with a requisite degree of culpability; and

    • causally linked to the county’s action.

    Slabey rested her argument in large part on a case from the U.S. Court of Appeals for the Seventh Circuit. In that case, two jail inmates who endured multiple sexual assaults by correctional officers prevailed on a section 1983 claim.

    But that case was distinguishable, Chief Justice Ziegler reasoned, because the county did nothing upon learning of the assaults.

    “Dunn County thoroughly investigated the August 2015 complaint and acted in a timely manner to impose unpaid leave on the officer,” Ziegler wrote. “When Boigenzahn returned to duty, he was required to continue training and monthly policy reviews.”

    Hindsight Not Enough

    Slabey argued that the county should have either fired Boigenzahn sooner, subjected him to constant supervision, or prevented him from having any contact with female inmates.

    But Chief Justice Ziegler concluded that those options were both unrealistic and conflicted with U.S. Supreme Court precedent.

    “Accepting Slabey’s arguments would make the County liable on a respondent superior theory, a result the Supreme Court has explicitly rejected,” Ziegler wrote.

    “Just because the County could have, in hindsight, done some things differently, does not mean that the County was the moving force behind the assault.”

    Dissent: County Was Culpable

    In her dissent, Justice Karofsky argued that Slabey met the relevant standard for section 1983 actions because:

    • the sheriff decided to retain Boigenzahn rather than fire him and allowed him to continue to guard female inmates alone;

    • the sheriff’s decision was culpable because a jury could reasonably conclude that the sheriff knew Boigenzahn’s behavior toward female inmates was escalating; and

    • a jury could reasonably conclude that Boigenzahn’s assault of Slabey was caused by the sheriff’s decision to retain Boigenzahn.

    “Slabey established that her sexual assault was caused by the Sheriff’s decision to put a guard with a known history of inappropriate and arguable sexual conduct towards female inmates back in a position where he would be along and unmonitored with those inmates,” Karofsky wrote.

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