J.K.J. v. Polk County, Wisconsin

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.