Wisconsin Supreme Court rules in favor of Dunn County in sexual assault case
PROTECTED CONTENT
If you’re a current subscriber, log in below. If you would like to subscribe, please click the subscribe tab above.
Username and Password Help
Please enter your email and we will send you a password reset link.
By LeAnn R. Ralph
MADISON — By a majority 5-2 opinion, the Wisconsin Supreme Court has ruled in favor of Dunn County that the county did not violate the rights of a jail inmate when a Dunn County correctional officer sexually assaulted her.
The Wisconsin Supreme Court filed the decision January 18 that upheld a Court of Appeals decision affirming a Dunn County Circuit Court’s order granting summary judgement in favor of Dunn County after the former inmate had filed a civil lawsuit against the county.
Chief Justice Annette Ziegler wrote the majority decision, which was joined by Justices Patience Roggensack, Rebecca Bradley, Rebecca Dallet and Brian Hagedorn, while Justices Jill Karofsky and Ann Walsh Bradley filed a dissenting opinion.
The Wisconsin Court of Appeals, the Honorable Maureen Boyle, issued a decision July 7, 2021, granting summary judgement in favor of Dunn County on Rachel Slabey’s claim under 42 U.S.C. Statute 1983.
Slabey argues that her claim against Dunn County should survive summary judgement because she presented sufficient evidence for a jury to find that Dunn County violated her rights under the Eighth and Fourteenth Amendments to the United States Constitution when former Dunn County Correctional Officer Ryan Boigenzahn sexually assaulted her in the Dunn County jail, according to the decision.
The Eighth Amendment states excessive bail shall not be
Assault
Case
Please
see
page
3
Continued
from
page
1
required or excessive fines imposed, nor cruel or unusual punishments inflicted.
The Fourteenth Amendment indicates that no state shall make any law or enforce any law that abridges the privileges or immunities of United States citizens; no states shall deprive any person of life, liberty or property without due process of law; and no state shall deny any person within its jurisdiction equal protection under the laws.
Deliberately indifferent
Slabey’s lawsuit alleges that Dunn County is liable because the “county was deliberately indifferent to a substantial risk of harm to Slabey by failing to thoroughly investigate, appropriately discipline and adequately supervise Boigenzahn,” according to the decision.
“We conclude that Slabey’s … claim against Dunn County fails because under Monell vs. Department of Social Services, 436 U.S. 658 (1978), no reasonable fact finder could conclude that Dunn County was the causal, moving force behind the sexual assault … a plaintiff suing a municipality for a constitutional deprivation must prove that the municipality caused — that is, was the moving force behind — the constitutional deprivation. This requires evidence that the municipal action was taken with ‘deliberate indifference’ as to its known or obvious consequences.’”
Defendants in the case included Dunn County Sheriff Dennis Smith, Brenda LaForte, Marshall L. Multhauf and Paul Gunness.
A Dunn County jury found Ryan Boigenzahn guilty of second degree sexual assault by correctional staff on May 15, 2017.
Judge Rod W. Smeltzer sentenced Boigenzahn on July 18, 2017, to two years in state prison and five years of extended supervision.
Background
Boigenzahn began working as a correctional officer at the Dunn County jail in April of 2011.
Dunn County required Boigenzahn, as part of his training, to attend the jail academy at Nicolet College, where he took a month-long 160-hour course pertaining to the job of correctional officer.
He also was required to participate in the course’s Prison Rape Elimination Act (PREA) of 2003 training.
Boigenzahn received certification from the Law Enforcement Standards Board in June of 2012.
He worked third shift at the jail from 10:30 p.m. to 7 a.m.
Policies
Dunn County also required Boigenzahn to review and certify he had reviewed all Dunn County policies, including the county’s fraternization, sexual misconduct, and PREA policies.
According to the policy quoted in the Supreme Court decision, sexual misconduct is any behavior or act of a sexual nature directed toward an inmate, detainee, victim, witness or complainant by any employee, volunteer, vendor, contractor, visitor or agency representative.
Sexual misconduct is not limited to unwanted sexual contact but also includes inappropriate remarks, sexualized name-calling, correspondence, conversations, inappropriate displays, fondling, inappropriate viewing, and sexual contact with individuals vulnerable to the authority of the justice system or any other person in a work setting.
According to Dunn County policy, any employee or staff member who knows or reasonably suspects that any employee may be or has been involved in sexual misconduct is required to inform the jail captain.
The jail captain must then notify the chief deputy, who will in turn notify the sheriff and other command staff as appropriate and needed.
All reported violations of sexual misconduct will be investigated and resolved through appropriate disciplinary processes and/or criminal proceedings in accordance with applicable state and federal laws, according to Dunn County’s policy.
Dunn County requires all staff, including correctional officers, to regularly complete policy reviews. Boigenzahn’s training log indicates he completed at least eight reviews of the county’s fraternization, sexual misconduct or PREA policies.
Close eye
In July of 2015, a correctional officer informed Sergeant Michael Owens that an inmate had said staff needed to “keep a close eye on male correctional officers.”
Sergeant Owens began investigating.
The inmate told Owens she had observed Boigenzahn passing notes between inmates.
Sergeant Owens also asked the inmate if one of the officers was developing a relationship with another inmate, but the inmate being interviewed said, “No, nothing like that.”
Owens reviewed surveillance footage and recorded telephone conversations between the inmates suspected of passing notes but found no evidence of misconduct and concluded the allegation “was not supported on a factual basis.”
The sergeant forwarded his report to his supervisor.
Crossing the line
In August of 2015, a different inmate told Sergeant Douglas Ormson that she had respect for the staff at the jail except for one person she believed was in danger of “crossing the line.”
When asked who she was referring to, the inmate said Boigenzahn and that he was was “too chummy with some of the females.”
The inmate said she saw another inmate who had playfully slapped Boigenzahn and that he and the inmate “talked quite a bit.”
When asked if she believed anything else had happened, she said she did not think so but that if there was an opportunity where there no cameras around, she believed something might happen.
The inmate said all of the women in the jail talk about Boigenzahn’s willingness to talk to them and that Boigenzahn “maybe liked the attention from the females.”
The inmate said she “knows that there is a bright line that staff aren’t supposed to cross,” and felt “if Officer Boigenzahn hasn’t already crossed that line, he is getting dangerously close to doing it.”
The inmate told investigators that several months earlier, she and Boigenzahn had accidentally touched hands and that when she pulled her hand back, Boigenzahn then responded it was alright. He didn’t mind.”
The inmate went on to say that women inmates had told her that Boigenzahn seems to be ‘obsessed’ with her and that they have observed him standing and watching her sleep.”
Suspension
As per Dunn County policy, the matter was brought to Dunn County Sheriff Dennis Smith.
The sheriff determined that Boigenzahn had violated county policies that prohibit fraternization and unbecoming conduct.
The available options for discipline were performance counseling, oral reprimand, written reprimand, unpaid suspension and termination.
The sheriff initially planned on terminating Boigenzahn’s employment, but he thought Boigenzahn had “been a pretty good jailer” and imposed a three-day suspension without pay, according to the decision.
When Boigenzahn returned to work, the sheriff considered moving Boigenzahn to the day shift where he would be under greater supervision because there was more staff on duty but decided against it because someone on day shift would be bumped off and forced to work the night shift.
Note
In May of 2016, the woman inmate reported to a sergeant that Boigenzahn had acted inappropriately again and had frequently contacted one inmate, and that on one occasion, Boigenzahn had accepted a note that was sexual in nature.
Boigenzahn admitted later that he had received a note from one of the inmates.
On May 19, 2016, Dunn County placed Boigenzahn on administrative leave and about a month later, the county terminated Boigenzahn’s employment.
Sexual assault
About a month after Boigenzahn’s employment was terminated, inmate Slabey was overhead saying, “(Boigenzahn) must have stuck his hand down somebody elses’s pants, too.”
When the jail captain was notified of Slabey’s statement, she called her supervisor, the chief deputy, who then reported the incident to the sheriff.
Sheriff Smith requested that the Menomonie Police Department investigate, and the criminal investigation revealed that on March 25, 2016, Boigenzahn had sexually assaulted Slabey.
Huber dorm
Boigenzahn had entered the Huber dorm and talked with Slabey and her bunkmate.
Slabey was on the top bunk, and the location was apparently out of the view of surveillance cameras.
During this time, Boigenzahn began touching Slabey and put his hand down her pants. When she told him “no,” he pulled his hand out, according to the Supreme Court decision.
Boigenzahn asked if Slabey was “going to tell on him,” and she said, “no.”
Radio checks are typically conducted after 10 minutes of not hearing from a corrections officer on rounds, but there was no radio check for the 45 minutes Boigenzahn was with Slabey and her bunkmate.
Boigenzahn was subsequently convicted and sentenced to prison for second-degree sexual assault.
Two days prior to the sexual assault, Boigenzahn had attended a legal update session that included PREA training.
Boigenzahn admitted that at the time of the sexual assault, he knew it was against state law, county policy and against PREA.
Summary judgement
Slabey filed a lawsuit against Dunn County, and the county responded that “the county did not act with deliberate indifference to (Slabey’s safety)” and “there is no evidence upon which a jury could find a Dunn County policy, custom or practice violated her constitutional rights,” the decision states.
Slabey opposed the summary judgement and argued that there are “sufficient facts to support a jury finding of deliberate indifference” and that “Dunn County’s informal custom/policy of ignoring dangers to female inmates caused Slabey’s (sexual) assault,” according to the decision.
Slabey asked for an appeals court review, which concluded there is “no evidence upon which a reasonable fact finder could rely to conclude (Dunn County was) deliberately indifferent to a substantial risk that Boigenzhan would sexually assault an inmate.”
Slabey then petitioned the Wisconsin Supreme Court for review.
According to the decision, a claim under Monell must demonstrate “that a municipality was not just a cause, but the ‘moving force’ behind the constitutional deprivation.”
A plaintiff must prove causation by showing “that the municipal action was taken with ‘deliberate indifference’ as to its known or obvious consequences. A showing of simple or even heightened negligence will not suffice.”
More than once
Evidence of a pattern of “tortious conduct” is typically necessary to establish that the municipal action “rather than a one-time negligent administration of the program or factors peculiar to the officer involved in a particular incident is the ‘moving force’ behind the plaintiff’s injury,” according to the decision.
Slabey acknowledges that hers is a “single incident” case because of the “absence of prior sexual assaults by male guards.”
She argues that she nonetheless prevails because “Dunn County acted with deliberate indifference to a significant, obvious risk of sexual violence to all female inmates,” according to the decision.
After the first violation of county policy by passing notes and non-sexual contact, the county acted within a month to discipline Boigenzahn with a three-day suspension. “The matter did not languish,” the Supreme Court decision states.
Boigenzahn was warned that if he failed to correct improper conduct, he would subject himself to further disciplinary action, including termination of his employment with Dunn County.
He also received additional PREA training two days before the sexual assault.
For about nine months after Boigenzahn returned to work from the suspension, Dunn County had no reason to believe he was non-compliant, according to the decision.
Slabey argued the county should have done more.
Insufficient evidence
Dunn County is entitled to summary judgement “because there is insufficient evidence for a reasonable fact finder to conclude that Dunn County was the moving force behind her being sexually assaulted,” the Supreme Court decision states.
“Just because Dunn County could have, in hindsight, done some things differently, does not mean that the county was the moving force behind the assault. Section 1983 ‘does not provide plaintiffs or courts carte blanche to micromanage local governments throughout the United States,’” the decision says.
Dissent
Justice Karofsky writes in her 25-page dissent that “while women are vulnerable almost everywhere in our society, they are especially at risk in correctional settings where an estimated 25 to 41 percent of incarcerated women are sexually abused … in such settings, female prisoners are dependent on guards, who are disproportionately male, for their very existence. This includes ‘their safety as well as their access to food, medical care, recreation and even contact with family members.’”
Justice Karofsky goes on to write, based on the evidence provided by Slabey, “a jury could find that Dunn County Sheriff’s Department officials ignored the clear warning signs that Boigenzahn had already engaged in inappropriate and escalating behavior with female inmates and then created the circumstances that allowed Boigenzahn to sexually assault Slabey. The Sheriff’s deliberate course of action enabled Boigenzahn to escape detection for 45 minutes as he was working alone, unsupervised, and unmonitored in the Huber dorm on the night he sexually assaulted Slabey.”
Justice Karofsky is referring to the sheriff’s decision, after Boigenzahn’s three-day unpaid suspension, to not transfer the correctional officer to the dayshift where there would be more people around and more supervision.
“Slabey provided sufficient evidence for a jury to reasonably find that the Sheriff’s course of action both demonstrated deliberate indifference and was the causal ‘moving force’ behind the sexual assault. Slabey’s Statute 1983 claim against Dunn County should therefore survive summary judgment,” according to the dissent.
In the conclusion to her dissent, Justice Karofsky writes, “When municipalities take inmates into custody, they assume a responsibility to protect them from sexual assault. But this responsibility means little if the justice system is unwilling to hold municipalities accountable when they fail to protect their inmates. When municipalities are not held to account, measures like PREA, enacted to eliminate sexual assault in jails and prisons, are reduced to little more than a perfunctory policy for correctional staff to sign, then freely disregard. Dunn County threw a match into the tinderbox when it sent Boigenzahn back to guard female inmates. The majority’s [of the Supreme Court] failure to hold Dunn County accountable is akin to standing idly by as the fire burns.”
