225 F. Supp. 3d 790
E.D. Wis.2016Background
- Jane Doe alleges correctional officer Xavier Thicklen sexually assaulted her multiple times in 2013 while he was on duty at the Milwaukee County Jail (clinic, attorney-visit escort, SMU roles); Thicklen was later charged and pleaded to a lesser public‑office misconduct offense.
- Doe sued the County, Sheriff David Clarke, Jr., Thicklen and unnamed officers asserting §1983 Monell claims (failure to supervise and failure to train/disciple theories) and state indemnification claims; WCMIC (insurer) intervened seeking a declaratory judgment that it owes no coverage.
- Prior relevant incidents: several alleged sexual‑misconduct complaints at the Jail from 2008–2013, with a small number substantiated (including separate officer James Howard convictions and a civil suit by a victim); parties dispute the extent to which these prior incidents put the County on notice of a pattern.
- County policies and training: the Sheriffs Office had a written zero‑tolerance sexual‑conduct policy (AM 7) and academy training warning officers sexual contact with inmates is a felony; Thicklen received these policies/training.
- Insurer’s policy provided coverage for ‘‘personal injury’’ including assault/battery and sexual molestation, but excluded ‘‘personal injury’’ arising out of the intentional or knowing violation of a penal statute committed by the insured.
- Procedural posture: cross summary‑judgment motions. Court grants County/Clarke summary judgment on Monell claims (failure to supervise/train/discipline) but denies summary judgment on scope‑of‑employment for indemnification; grants WCMIC declaratory judgment that it has no duty to defend or indemnify Thicklen under the policy.
Issues
| Issue | Doe's Argument | County/WCMIC Argument | Held |
|---|---|---|---|
| Whether County is liable under Monell for failure to supervise/train causing sexual assaults | County had notice of an obvious risk (prior incidents, criminal prohibitions) and supervision/tracking/camera policies were inadequate | Prior incidents were too few/insufficiently connected to alleged policy failures; County investigated and had policies/training in place | Court: Summary judgment for County on Monell claims — Doe failed to show the pattern/notice required for deliberate indifference |
| Whether failure‑to‑train/failure‑to‑discipline Monell theories survive | (Doe initially pleaded them) training/discipline were inadequate | Policies/training existed and were adequate; no deliberate indifference | Doe abandoned failure‑to‑train/discipline; court grants summary judgment to defendants on those theories |
| Whether Thicklen’s assaults occurred within scope of employment (affects indemnification and insurer coverage) | Acts were enabled by his on‑duty roles (escort, access, uniform, authority), so a jury could find partial employer purpose/continuum with duties | Sexual acts are inherently personal and prohibited; thus outside scope as a matter of law | Court: fact question remains; summary judgment denied on scope — jury must decide intent/purpose |
| Whether WCMIC must defend/indemnify Thicklen under the policy (penal‑statute exclusion) | Policy ambiguous because it both covers sexual molestation and excludes intentional criminal acts | Exclusion bars coverage for intentional/knowing violations of penal statutes by insured (and §940.225(2)(h) criminalizes officer‑inmate sex) | Court: exclusion applies; declaratory judgment for WCMIC — no duty to defend or indemnify Thicklen |
Key Cases Cited
- Monell v. Dep’t of Social Servs. of City of New York, 436 U.S. 658 (municipal liability requires policy, custom, or official action)
- City of Canton v. Harris, 489 U.S. 378 (failure to train liability requires deliberate indifference)
- Dunn v. City of Elgin, 347 F.3d 641 (7th Cir.) (deliberate indifference shown by recurring obvious situations or failure to train after a pattern)
- Thomas v. Cook Cnty. Sheriff’s Dept., 604 F.3d 293 (7th Cir.) (standards for Monell claims based on custom/practice)
- Palmer v. Marion Cnty., 327 F.3d 588 (7th Cir.) (few incidents insufficient to prove widespread custom)
- Minix v. Canarecci, 597 F.3d 824 (7th Cir.) (single incident generally insufficient for municipal notice)
- Javier v. City of Milwaukee, 670 F.3d 823 (7th Cir.) (officer can greatly exceed authority yet still act within scope depending on facts)
- Gillund v. Meridian Mut. Ins. Co., 323 Wis.2d 1 (Wis.) (penal‑statute exclusions can bar coverage even when policy grants coverage for similar civil torts)