2023 WI 2

SUPREME COURT OF WISCONSIN

CASE NO.: 2020AP877

COMPLETE TITLE: Rachel Slabey,

 Plaintiff-Appellant-Petitioner,

 v.

Dunn County, Wisconsin, Dennis P. Smith, Brenda 

LaForte, Marshall L. Multhauf and Paul Gunness,

 Defendants-Respondents,

Dunn County Sheriff's Office, Ryan Boigenzahn, 

John Doe One, John Doe Two and John Doe Three,

 Defendants,

Wisconsin County Mutual Insurance Corporation,

 Intervenor.

REVIEW OF DECISION OF THE COURT OF APPEALS

Reported at 399 Wis. 2d 323, 964 N.W.2d 549

(year – unpublished)

OPINION FILED: January 18, 2023 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: October 10, 2022 

SOURCE OF APPEAL:

COURT: Circuit 

COUNTY: Dunn 

JUDGE: Maureen D. Boyle 

JUSTICES:

ZIEGLER, C.J., delivered the majority opinion of the Court, in 

which ROGGENSACK, REBECCA GRASSL BRADLEY, DALLET, and HAGEDORN, 

JJ., joined. KAROFSKY, J., filed a dissenting opinion, in which 

ANN WALSH BRADLEY, J., joined.

NOT PARTICIPATING:

ATTORNEYS:

For the plaintiff-appellant-petitioner, there were briefs 

filed by Cristina M. Wirth, Martha H. Heidt, and Bye, Goff & 

Rohde, Ltd., River Falls. There was an oral argument by Cristina 

M. Wirth. 
2

For the defendants-respondents, there was a brief filed by 

Samuel C. Hall, Jr., Timothy M. Johnson, Molly K. Woodford, and 

Crivello Carlson, S.C., Eau Claire. There was an oral argument 

by Samuel C. Hall, Jr.

An amicus curiae brief was filed by Mark L. Thomsen, Lynn 

R. Laufenberg, Kimberly D. Sweatt, and Gingras, Thomsen & Wachs, 

LLP, Madison, and James D. Rogers and Wisconsin Association for 

Justice, Madison, for the Wisconsin Association for Justice. 
2023 WI 2

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2020AP877

(L.C. No. 2017CV277)

STATE OF WISCONSIN : IN SUPREME COURT

Rachel Slabey,

 Plaintiff-Appellant-Petitioner,

 v.

Dunn County, Wisconsin, Dennis P. Smith, Brenda 

LaForte, Marshall L. Multhauf and Paul Gunness,

 Defendants-Respondents,

Dunn County Sheriff's Office, Ryan Boigenzahn, 

John Doe One, John Doe Two and John Doe Three,

 Defendants,

Wisconsin County Mutual Insurance Corporation,

 Intervenor.

FILED

JAN 18, 2023

Sheila T. Reiff

Clerk of Supreme Court

ZIEGLER, C.J., delivered the majority opinion of the Court, in 

which ROGGENSACK, REBECCA GRASSL BRADLEY, DALLET, and HAGEDORN, 

JJ., joined. KAROFSKY, J., filed a dissenting opinion, in which 

ANN WALSH BRADLEY, J., joined.

REVIEW of a decision of the Court of Appeals. Affirmed. 

¶1 ANNETTE KINGSLAND ZIEGLER, C.J. This is a review of 

an unpublished decision of the court of appeals, Slabey v. Dunn 

County, No. 2020AP877, unpublished slip op. (Wis. Ct. App. 
No. 2020AP877 

2

July 7, 2021), affirming the Dunn County circuit court's1 order 

granting summary judgment in favor of Dunn County on Rachel 

Slabey's claim under 42 U.S.C. § 1983. We affirm.

¶2 Slabey argues that her § 1983 claim against Dunn 

County survives summary judgment because she presented evidence 

sufficient for a reasonable jury to find that Dunn County2

violated her rights under the Eighth and Fourteenth Amendments 

to the United States Constitution when then-Dunn County 

Correctional Officer Ryan Boigenzahn sexually assaulted her. 

According to Slabey, Dunn County is liable because the "County 

was deliberately indifferent to a substantial risk of harm to 

Slabey by failing to thoroughly investigate, appropriately 

discipline, and adequately supervise Boigenzahn." Slabey argues 

that the circuit court erroneously granted Dunn County summary 

judgment and that the court of appeals erred in affirming that 

result.

¶3 We conclude that Slabey's § 1983 claim against Dunn 

County fails because, under Monell v. Department of Social 

Services, 436 U.S. 658 (1978), no reasonable fact finder could

conclude that Dunn County was the causal, moving force behind 

the sexual assault. A § 1983 plaintiff suing a municipality for 

a constitutional deprivation must prove that the municipality 

caused——that is, was the moving force behind——the constitutional 

 

1 The Honorable Maureen D. Boyle presided. 

2 All references to "the County" are to Dunn County unless 

otherwise noted.
No. 2020AP877 

3

deprivation. This requires evidence "that the municipal action 

was taken with 'deliberate indifference' as to its known or 

obvious consequences." Bd. of Cnty. Comm'rs of Bryan Cnty. v. 

Brown, 520 U.S. 397, 407 (1997) (quoting City of Canton v. 

Harris, 489 U.S. 378, 388 (1989)). Here, there is insufficient 

evidence demonstrating Dunn County acted with deliberate 

indifference to a known or obvious consequence that Boigenzahn 

would sexually assault Slabey. The circuit court was correct to 

grant Dunn County summary judgment on Slabey's § 1983 

constitutional deprivation claim. We affirm the court of 

appeals.

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

¶4 Ryan Boigenzahn began working as a correctional 

officer ("CO") at the Dunn County Jail in April 2011. As part 

of his training, Dunn County required Boigenzahn to attend the 

Jail Academy at Nicolet College. There, Boigenzahn took a 

month-long, 160-hour course where, according to Boigenzahn, he 

learned "what it is to be a corrections officer in the state of 

Wisconsin." Boigenzahn was also required to participate in the 

course's Prison Rape Elimination Act of 2003 ("PREA")3 training. 

Boigenzahn admitted during his deposition that he "learn[ed] 

through that training . . . that sexual contact between inmates 

and prisoners was" prohibited by law. He passed the training 

course, and he received his certification from the Law 

Enforcement Standards Board in June 2012. Boigenzahn worked 

 

3 34 U.S.C. §§ 30301-30309 (2018).
No. 2020AP877 

4

third shift at the jail as a CO, which was from 10:30 p.m. to 

7:00 a.m. 

¶5 Dunn County also required Boigenzahn to review and 

certify that he reviewed all Dunn County policies, including the 

County's fraternization, sexual misconduct, and PREA policies. 

Boigenzahn signed these policies, stating, "I certify that I 

have read, understand, and will comply with the 

policies . . . ." Dunn County's fraternization policy includes, 

in relevant part:

Employees of the Dunn County Sheriff's Office shall 

not:

a. Have a relationship with an inmate/prisoner or 

the spouse of an inmate/prisoner under the 

supervision or custody of the Dunn County Jail, 

for one year after their release. 

b. Have a relationship with individuals whom the 

employee knows is [sic] incarcerated in a state 

correctional facility or a county jail other than 

the Dunn County Jail, or under the supervision of 

the Wisconsin Department of Corrections 

(Probation/Parole), or for one year after their 

release.

c. Have personal contacts that are usually one-toone such as dating, knowingly form close 

friendships, correspond without an exception 

granted or have visits that are not job related, 

for a period of one year after their release.

d. Accept or give gifts, provide services in 

exchange for work performed, for one year after 

their release.

e. Encourage or allow to occur, the exchange of 

personal or departmental information between the 

employee and an inmate.
No. 2020AP877 

5

The sexual misconduct/PREA policy prohibits all staff, including 

COs like Boigenzahn, from engaging in sexual misconduct, which 

the policy defines as follows:

Sexual Misconduct is any behavior or act of a sexual 

nature directed toward an inmate, detainee, victim, 

witness, or complainant by any employee, volunteer, 

vendor, contractor, visitor or agency representative.

1. This includes acts or attempts to commit such 

acts including, but not limited to, sexual 

assault, sexual abuse, sexual harassment, sexual 

contact, conduct of a sexual nature or 

implication, obscenity and unreasonable or 

unnecessary invasion of privacy.

2. Sexual misconduct also includes, but is not 

limited to, conversations or correspondence that 

suggests a romantic or sexual relationship 

involving any person mentioned above.

3. Sexual misconduct is not limited to unwanted 

sexual contact. Sexual misconduct is also a 

range of behaviors or situations that include 

inappropriate remarks, sexualized name-calling, 

correspondence, conversations, inappropriate 

displays, fondling, inappropriate viewing, and 

sexual contact with individuals vulnerable to the 

authority of the justice system or any other 

person in a work setting. Such acts are 

inappropriate in a work setting and presumed to 

be unwelcome.

4. Romantic relationships between supervisors and 

those under their supervision are presumed to be 

coercive and may be deemed sexual harassment or 

misconduct.

Dunn County's sexual misconduct/PREA policy also requires staff 

to report and investigate all alleged violations:

A. Reporting Requirements

1. Any employee or staff member who knows or 

reasonably suspects that any employee may be or has 
No. 2020AP877 

6

been involved in sexual misconduct is required to 

inform the Jail Captain. To protect the 

reputations and integrity of all persons engaged in 

such a process, including the accuser, the accused, 

and the alleged victim, all such reports shall be 

dealt with as matters of highest discretion both 

before and after they have been submitted to 

appropriate authorities.

. . . .

4. Upon receiving a report of possible sexual 

misconduct or harassment, the Jail Captain shall 

notify the Chief Deputy. The Chief Deputy shall in 

turn notify the Sheriff and other Command Staff as 

appropriate and needed.

B. Investigation

1. All reported violations of sexual misconduct, 

including sexual assault and harassment, will be 

investigated and, as warranted, will be resolved 

through appropriate disciplinary processes and/or 

criminal proceedings in accordance with applicable 

state and federal laws.

Dunn County requires all staff, including COs like Boigenzahn, 

to regularly complete policy reviews. According to Boigenzahn's 

training log, he completed at least eight reviews of the 

County's fraternization, sexual misconduct, or PREA policies. 

After each policy review, Boigenzahn certified that he read and 

understood the policy.

¶6 On July 31, 2015, a CO informed Sergeant Michael Owens 

that inmate J.W.B. expressed that staff needed to "keep a close 

eye on [the] 'male COs.'" Sergeant Owens immediately began 

investigating. He first interviewed J.W.B. During the 

interview, J.W.B. said that she observed Boigenzahn passing 

notes between inmates on July 28, 2015. Sergeant Owens also 

"asked her if one of [the] officers was developing a 
No. 2020AP877 

7

relationship with an inmate." J.W.B. said "no, nothing like 

that." Sergeant Owens also reviewed surveillance footage of the 

alleged incident and recorded phone conversations between the 

inmates suspected of note-passing. He discovered no evidence of 

misconduct and determined "[t]he allegation [was] not supported 

on a factual basis." Sergeant Owens recorded the results of his 

investigation in a report and, according to County policy, 

forwarded that report to his supervisor. 

¶7 On August 6, 2015, a different inmate, B.M., said to 

Sergeant Douglas Ormson that "she actually had a lot of respect 

for the staff at the Jail, except for one person who she felt 

was in danger of 'crossing the line.'" Sergeant Ormson asked 

B.M. who she was referring to and to elaborate. B.M. identified 

Boigenzahn and said he "was too chummy with some of the 

females." B.M. said she saw another inmate, A.D., "playfully 

slap[] Officer Boigenzahn on the chest," and that A.D. and 

Boigenzahn "talked quite a bit." Sergeant Ormson asked B.M. "if 

she felt that anything else had happened." B.M. said "she 

didn't think so, but she felt that if there was an opportunity 

where there were no cameras around she felt something might 

happen." B.M. also told Sergeant Ormson how "all the females in 

the Jail talk about that, and about [Boigenzahn's] willingness 

to talk to them," and how Boigenzahn "maybe liked the attention 

from the females." Sergeant Ormson "asked her again if she had 

witnessed anything sexual or even heard any rumors about that 

type of relationship," and B.M. said she hadn't "but again said 

her feeling was that was a possibility if things progressed." 
No. 2020AP877 

8

B.M. said she "knows that there is a 'bright line' that staff 

aren't supposed to cross" and felt "if Officer Boigenzahn hasn't 

already crossed that line that he is getting dangerously close 

to doing it."

¶8 The next day, Sergeant Ormson discussed this matter 

with Sergeant Owens, who stated he heard similar allegations, 

and Sergeant Rachel Vold. The three decided that Sergeant Vold 

would review surveillance footage to investigate the

allegations. Sergeant Vold reviewed two weeks of surveillance 

footage and found two concerning instances. On July 29, 2015, 

while delivering medications to inmates, Boigenzahn "playfully 

reach[ed] out his foot to step on [A.D.]'s foot." On August 6, 

2015, again while delivering medications, Boigenzahn "gesture[d] 

with his head as if motioning someone to come in his direction, 

and also with his right arm. [A.D.] then [came] running over to 

him. . . . [A]s she walk[ed] away she brush[ed] him with her 

hand on his shoulder/chest area." Pursuant to Dunn County 

policy, Sergeant Vold forwarded this information to the Jail 

Captain on August 10, 2015. The Jail Captain told Sergeant Vold 

to interview A.D., which she did later that day. 

¶9 During that interview, Sergeant Vold informed A.D. 

that "at no time should there ever be any sort of contact with 

an officer, male or female, whatsoever." Sergeant Vold "went on 

to ask [A.D.] if there [were] any instances where she felt 

uncomfortable [because of] any male or female officer." A.D. 

said that Boigenzahn made her feel uncomfortable. A.D. reported 

that three months prior, she and Boigenzahn "accidentally bumped 
No. 2020AP877 

9

hands" and that A.D. "pulled her hand back, where [Boigenzahn] 

then responded that it was alright[;] he didn’t mind." A.D. 

"went on to say that other female inmates . . . told her 

[Boigenzahn] seems to be 'obsessed' with her and that they have 

observed him standing and watching her sleep." Sergeant Vold 

asked A.D. "if there were any other instances or officers that 

made her feel uncomfortable, to which she responded no." 

¶10 Later that same day, the Jail Captain and the Dunn 

County Chief Deputy interviewed Boigenzahn regarding these 

allegations. Boigenzahn initially denied passing notes between 

inmates, but he admitted to doing so once the Jail Captain and

Chief Deputy reminded Boigenzahn that he could be terminated for 

lying. Boigenzahn said he made a "dumb mistake passing the note 

and it w[ould] not happen again." They also showed Boigenzahn 

the videos of him and A.D., but he denied that there was any 

inappropriate conduct. The Jail Captain and Chief Deputy 

further discussed "policy violations, co-worker mistrust, and 

inmates who now think there is a relationship between [A.D.] and 

CO Boigenzahn." Boigenzahn explained that he "tries to gain 

rapport or cooperation with inmates but now sees that he needs 

to be sterner."

¶11 Pursuant to Dunn County policy, the matter was then 

brought to the Dunn County Sheriff. Based on the results of the 

investigation, the Sheriff decided that Boigenzahn violated Dunn 

County's policies which prohibited fraternization and unbecoming 

conduct. The Sheriff decided to impose discipline. The 

available options were performance counseling, oral reprimand, 
No. 2020AP877 

10

written reprimand, unpaid suspension, and termination. The 

Sheriff initially "was planning on terminating [Boigenzahn]. 

But [he thought that Boigenzahn] really had been a pretty good 

jailer on a lot of other notes, . . . so the decision was made 

to give him a three-day suspension and try and say wake up." 

Accordingly, on August 26, 2015, Dunn County suspended 

Boigenzahn for three days without pay. When communicating the 

Sheriff's disciplinary decision, the Chief Deputy warned 

Boigenzahn:

I expect you will take this opportunity to correct 

your improper conduct in the future, fully meet the 

duties and responsibilities required of you and 

observe all the rules and procedures of your job. If 

you fail to do so, you will subject yourself to 

further disciplinary action, including discharge and 

termination of your employment with the County.

Boigenzahn returned to work on August 29, 2015. The Sheriff 

also considered moving Boigenzahn to the day shift so he could 

be under greater supervision because more staff worked that 

shift, but the Sheriff decided against this because "it would 

affect somebody on day shift that would be bumped off from that 

shift and forced onto the night shift." 

¶12 About nine months later, in May 2016, inmate A.D. 

reported to Sergeant Vold that Boigenzahn again acted 

inappropriately. She stated that Boigenzahn frequently 

contacted inmate B.S. A.D. stated that on one occasion 

Boigenzahn accepted a note that was sexual in nature from B.S. 

Surveillance footage showed that on April 17, 2016, at 2:32 

a.m., Boigenzahn spent 12 minutes out of camera view and near 
No. 2020AP877 

11

B.S.'s bunk. Boigenzahn later admitted that he did receive the 

note from B.S. On May 19, 2016, the County placed Boigenzahn on 

administrative leave, and on May 31, 2016, he was terminated.

¶13 About one month after Dunn County terminated 

Boigenzahn, on June 27, 2016, inmate Slabey was heard saying, 

"[Boigenzahn] must have stuck his hand down somebody else's 

pants, too." According to Slabey, she said this "jokingly." 

Investigator Dan Westlund, however, who was at the jail to 

interview Slabey regarding an unrelated matter, overheard 

Slabey's remark. He immediately reported what he heard to the 

Jail Captain. Pursuant to County policy, the Jail Captain 

called her supervisor, the Chief Deputy, and the matter was 

reported to the Sheriff. The Sheriff requested that an outside 

agency investigate Slabey's allegations. The Menomonie Police 

Department then investigated the allegations against Boigenzahn.

¶14 The criminal investigation regarding Slabey's 

statement revealed that on March 25, 2016, about seven months 

after Boigenzahn was first disciplined by the County, he 

sexually assaulted Slabey. Boigenzahn entered the Huber Dorm4

and talked with Slabey and her bunkmate. Slabey was on the top 

 

4 The Huber Dorm is an open area with bunk beds for inmates 

on Huber work release. See generally Wis. Stat. § 303.08 (2019-

20).
No. 2020AP877 

12

bunk in a location that was apparently out of camera view.5 

According to Slabey, she "made a comment [to Boigenzahn] about 

do you ever get in trouble . . . . And he's like yeah, I've 

gotten in trouble before, he's like, but I can –- pretty much 

saying he didn't care, you know." It is undisputed that during 

this time, Boigenzahn began touching Slabey and put his hand 

down her pants. Slabey told Boigenzahn, "no," and he pulled his 

hand out. According to Slabey, Boigenzahn said, "you're not 

going to tell on me, are you. . . . And [Slabey] told him no, 

I'm not going to tell on you." Radio checks were typically 

conducted after ten minutes of not hearing from a CO on rounds 

and, according to Boigenzahn, he did receive a radio check the 

night of the assault. There was however no radio check during 

the 45 minutes Boigenzahn was with Slabey and her bunkmate. 

Boigenzahn was charged and subsequently convicted and sentenced 

to prison for second-degree sexual assault by correctional staff 

contrary to Wis. Stat. § 940.225(2)(h) (2016-17). 

¶15 Notably, it was just two days prior to the sexual 

assault that, pursuant to Dunn County policy, Boigenzahn had 

attended a legal update session that included PREA training. 

Boigenzahn admitted that, at the time of the sexual assault, he 

 

5 According to Slabey's deposition, also on or about 

March 25, 2016, Slabey asked Boigenzahn "if [she] could move 

down to the bottom bunk . . . because it was open." Slabey 

claimed Boigenzahn "told [her], why would you want to move there 

because this one is off camera view up here, and he said that 

[she] couldn't move." Slabey took this to mean at the time that 

it would be easier for her to have contraband if she remained on 

the top bunk.
No. 2020AP877 

13

knew it was against state law, against County policy, and 

against PREA.

¶16 On November 15, 2017, Slabey commenced this action 

against Dunn County under 42 U.S.C. § 1983, alleging that the 

County violated her rights under the Eighth and Fourteenth 

Amendments to the United States Constitution.6 Dunn County moved 

for summary judgment, arguing that it was not liable under 

§ 1983 because "the County did not act with deliberate 

indifference to [Slabey's] safety," "there is no evidence upon 

which a jury could find a Dunn County policy, custom, or 

practice violated her constitutional rights," and "[Slabey's] 

substantive due process rights were not violated by the County." 

Slabey opposed summary judgment, arguing that there are 

"sufficient facts to support a jury finding [of] deliberate 

indifference" and that "Dunn County's informal custom/policy of 

ignoring dangers to female inmates caused Slabey's [sexual] 

assault." 

¶17 The circuit court held a hearing on Dunn County's 

motion and subsequently issued a written decision granting Dunn 

County summary judgment. The court concluded, "There is no 

evidence that [Dunn County's] training practices were 

 

6 In her petition for review, Slabey asserted claims against 

not just Dunn County but also several individual defendants 

employed by the County. In her briefing, however, Slabey 

asserts claims only against Dunn County and therefore has 

abandoned her claims against the individual defendants. A.O. 

Smith Corp. v. Allstate Ins. Companies, 222 Wis. 2d 475, 492, 

588 N.W.2d 285 (Ct. App. 1998) ("[A]n issue raised on appeal, 

but not briefed or argued, is deemed abandoned."). 
No. 2020AP877 

14

constitutionally deficient and that the County was aware of the 

deficiency and failed to abate the deficiency." 

¶18 Slabey appealed the circuit court's order. The court 

of appeals affirmed, concluding there is "no evidence upon which 

a reasonable fact finder could rely to conclude [Dunn County 

was] deliberately indifferent to a substantial risk that 

Boigenzahn would sexually assault an inmate." Slabey, No. 

2020AP877, ¶1. 

¶19 Slabey petitioned this court for review, which we 

granted.

II. STANDARD OF REVIEW

¶20 "We independently review a grant or denial of summary 

judgment, applying the same method as the circuit court."

Hoida, Inc. v. M&I Midstate Bank, 2006 WI 69, ¶15, 291 

Wis. 2d 283, 717 N.W.2d 17. "While our review is independent 

from the circuit court and court of appeals, we benefit from 

their analyses," both of which concluded that summary judgment 

is appropriate. DSG Evergreen Fam. Ltd. P'ship v. Town of 

Perry, 2020 WI 23, ¶15, 390 Wis. 2d 533, 939 N.W.2d 564. "We 

will affirm a grant of summary judgment when there are no 

genuine issues of material fact and the moving party is entitled 

to judgment as a matter of law." Baumeister v. Automated 

Prods., Inc., 2004 WI 148, ¶11, 277 Wis. 2d 21, 690 N.W.2d 1. 

"A factual issue is 'genuine' if the evidence is such that a 

reasonable jury could return a verdict in favor of the nonmoving party." Midwest Neurosciences Assocs., LLC v. Great 
No. 2020AP877 

15

Lakes Neurosurgical Assocs., LLC, 2018 WI 112, ¶80, 384 

Wis. 2d 669, 920 N.W.2d 767.

III. ANALYSIS

¶21 The parties do not dispute that Slabey suffered a 

constitutional deprivation because she was sexually assaulted by 

Boigenzahn.7 The issue in this case is not whether Boigenzahn 

committed a sexual assault. He did, and what he did to Slabey 

was terribly wrong. But a claim against Boigenzahn is not the 

claim we analyze today. Whether Dunn County is liable to Slabey 

under 42 U.S.C. § 1983 is an altogether separate legal inquiry. 

In analyzing that issue, we must consider the exacting standards 

set forth in Monell, 436 U.S. 658. In short, Slabey asserts 

that "Dunn County was deliberately indifferent to a substantial 

risk of harm to Slabey by failing to thoroughly investigate, 

appropriately discipline, and adequately supervise Boigenzahn."8

¶22 Because the only issue before us is whether Dunn 

County is liable to Slabey under § 1983, we must analyze the 

standards outlined in Monell. We begin with an overview of 

 

7 Though the issue is not before us, for purposes of this 

review, we assume without deciding that Boigenzahn violated 

Slabey's constitutional rights. 

8 Slabey raised an additional issue in her opening brief, 

arguing that Dunn County is not entitled to qualified immunity. 

However, Dunn County does not argue here that it is entitled to 

qualified immunity. Nor could it. It is well settled that 

municipalities cannot assert qualified immunity. Owen v. City 

of Independence, 445 U.S. 622 (1980) (holding that 

municipalities are not entitled to qualified immunity); see also

Davis v. United States, 564 U.S. 229, 248 n.9 (2011)

(recognizing the same). 
No. 2020AP877 

16

municipal liability under § 1983. See Monell, 436 U.S. 658. 

Specifically, the causation requirement in Monell is 

dispositive. We then conclude that Slabey failed to demonstrate 

that Dunn County's action or inaction was the moving force 

behind her constitutional deprivation. Because Slabey cannot 

demonstrate the requisite causation, we need not analyze the 

other criteria of a municipality's liability in a § 1983 claim 

under Monell. 

A. Monell Liability Generally

¶23 Unlike any liability that may exist for an individual 

like Boigenzahn, in order for a municipality to be liable in a 

42 U.S.C. § 1983 action, the plaintiff must demonstrate that she 

can satisfy the exacting standards set forth by Monell. Under

§ 1983, 

Every person who, under color of any statute, 

ordinance, regulation, custom, or usage, of any State 

or Territory or the District of Columbia, subjects, or 

causes to be subjected, any citizen of the United 

States or other person within the jurisdiction thereof 

to the deprivation of any rights, privileges, or 

immunities secured by the Constitution and laws, shall 

be liable to the party injured . . . .

In Monell, 436 U.S. 658, the United States Supreme Court 

interpreted "person" within the meaning of § 1983 as including 

local governing bodies. Monell involved public employees whose 

employers "had as a matter of official policy compelled pregnant 

employees to take unpaid leaves of absence before such leaves 

were required for medical reasons." Id. at 660-61. The

employees sued the Department of Social Services and Board of 
No. 2020AP877 

17

Education of the City of New York for damages under § 1983. Id.

at 660-62. The Court held that the employees could sue these 

local governing units: 

Congress did intend municipalities and other local 

government units to be included among those persons to 

whom § 1983 applies. Local governing bodies, 

therefore, can be sued directly under § 1983 for 

monetary, declaratory, or injunctive relief where, as 

here, the action that is alleged to be 

unconstitutional implements or executes a policy 

statement, ordinance, regulation, or decision 

officially adopted and promulgated by that body's 

officers. 

Id. at 690 (footnotes and emphasis omitted).

¶24 However, the Court also explained that "Congress did 

not intend municipalities to be held liable unless action 

pursuant to official municipal policy of some nature caused a 

constitutional tort." Id. at 691. "[A] municipality cannot be 

held liable solely because it employs a tortfeasor——or, in other 

words, a municipality cannot be held liable under § 1983 on a 

respondeat superior theory." Id. (emphasis omitted). "Instead, 

it is when execution of a government's policy or custom, whether 

made by its lawmakers or by those whose edicts or acts may 

fairly be said to represent official policy, inflicts the injury 

that the government as an entity is responsible under § 1983." 

Id. at 694. Monell and its progeny thus require a plaintiff to 

satisfy each of the following to prove municipal liability under 

§ 1983: (1) "identify a municipal 'policy' or 'custom' that 

caused the plaintiff's injury"; (2) "the municipal action was 

taken with the requisite degree of culpability"; and (3) there 
No. 2020AP877 

18

is "a direct causal link between the municipal action and the 

deprivation of federal rights." Bryan Cnty., 520 U.S. at 403-

04. Because this case is resolved on the third requirement, 

causation, we need not address the first two.

B. Section 1983 Causation Under Monell.

¶25 To prevail in her claim under 42 U.S.C. § 1983 against 

Dunn County, Slabey must demonstrate that the County caused her 

constitutional deprivation. Slabey argues that causation is 

satisfied because (1) "Dunn County failed to thoroughly 

investigate claims that Boigenzahn's conduct would cross a 

line"; (2) "Dunn County failed to appropriately discipline 

Boigenzahn in light of the clear risk of harm that his conduct 

posed to inmates generally and Rachel Slabey specifically"; and 

(3) Dunn County "failed to properly supervise Boigenzahn to

prevent any further escalation of his misconduct." Slabey 

argues that these acts of the County caused her constitutional 

deprivation because they "caused Boigenzahn's conduct to 

escalate to Slabey's assault."

¶26 "Where a plaintiff claims that the municipality has 

not directly inflicted an injury, but nonetheless has caused an 

employee to do so, rigorous standards of . . . causation must be 

applied to ensure that the municipality is not held liable 

solely for the actions of its employee." Bryan Cnty., 520 U.S.

at 405. Monell requires plaintiffs to "demonstrate a direct 

causal link between the municipal action and the deprivation of 

federal rights." Id. at 397. "[M]ere 'but-for' causation is 

insufficient." Harte v. Bd. of Comm'rs, 864 F.3d 1154, 1204 
No. 2020AP877 

19

(10th Cir. 2017) (quoting Bryan Cnty., 520 U.S. at 410). 

Rather, a plaintiff bringing a § 1983 claim under Monell must 

demonstrate that a municipality was not just a cause, but the 

"moving force" behind the constitutional deprivation. Monell, 

436 U.S. at 694-95. 

¶27 Monell's causation requirement is a high bar for 

plaintiffs to clear. "[L]esser standards . . . would require 

the federal [and state] courts endlessly to 'second-guess' the 

wisdom of municipal [programs], a task inappropriate for the 

federal [and state] judiciar[ies]." Doe v. Taylor Indep. Sch. 

Dist., 15 F.3d 443, 453 (5th Cir. 1994) (citing City of Canton, 

489 U.S. at 392). The requirement is "applied with especial 

rigor when the municipal policy or practice is itself not 

unconstitutional, for example, when the municipal liability 

claim is based upon inadequate training, supervision, and 

deficiencies in hiring." Schneider v. City of Grand Junction 

Police Department, 717 F.3d 760, 770 (10th Cir. 2013) (quoting 

Martin A. Schwartz, Section 1983 Litigation Claims & Defenses

§ 7.12 (2013)). In such cases, a § 1983 plaintiff "must" prove 

causation by showing "that the municipal action was taken with 

'deliberate indifference' as to its known or obvious 

consequences. A showing of simple or even heightened negligence 

will not suffice." Bryan Cnty., 520 U.S. at 407 (citation 

omitted). Evidence of a "pattern of tortious conduct" is 

typically necessary to establish that the municipal action

"rather than a one-time negligent administration of the program 

or factors peculiar to the officer involved in a particular 
No. 2020AP877 

20

incident, is the 'moving force' behind the plaintiff's injury." 

Id. at 407-08 (citing City of Canton, 489 U.S. at 390-91); see 

also Oklahoma City v. Tuttle, 471 U.S. 808, 824 (1985) ("[W]here 

the policy relied upon is not itself unconstitutional,

considerably more proof than the single incident will be 

necessary in every case to establish . . . the causal connection 

between the 'policy' and the constitutional deprivation."). 

¶28 Slabey acknowledges that hers is a "single incident" 

case because of the "absence of prior sexual assaults of female 

inmates by male guards." She argues that, although the singleincident theory governs her claim, she nonetheless prevails 

under that theory because "Dunn County acted with deliberate 

indifference to a significant, obvious risk of sexual violence

to all female inmates." 

¶29 Though not impossible, it is exceedingly rare that a 

§ 1983 plaintiff under Monell can prove causation based on a 

single incident.9 The United States Supreme Court first 

 

9 This rigorous standard is what drives our analysis. 

Section 1983 plaintiffs suing municipalities must clear a high 

bar——a bar that is even higher when alleging liability based on 

a "single incident." For those who would relax this standard by 

conflating it with our standard of review on summary judgment, 

doing so would massively broaden the "single incident" exception 

and "only invite jury nullification of Monell." City of Canton 

v. Harris, 489 U.S. 378, 399 (1989) (O'Connor, J., concurring).
No. 2020AP877 

21

recognized the possibility of such a claim in City of Canton v. 

Harris, 489 U.S. 378. In City of Canton, officers failed to 

seek medical attention for an arrested suspect despite the 

suspect sitting on the floor of the patrol car, responding with 

"an incoherent remark" when asked if she needed medical 

attention, "slump[ing] to the floor on two occasions," and lying 

on the floor. Id. at 381. The plaintiff argued that the 

officers "were not provided with any special training (beyond 

first-aid training) to make a determination as to when to summon 

medical care for an injured detainee." Id. at 382. The Supreme 

Court noted that a claim based on a single incident might 

survive in some cases: 

[I]t may happen that in light of the duties assigned 

to specific officers or employees the need for more or 

different training is so obvious, and the inadequacy 

so likely to result in the violation of constitutional 

rights, that the policymakers of the city can 

reasonably be said to have been deliberately 

indifferent to the need.

 

If this were not the well-established standard, we could 

instead reinvent § 1983 law and analyze how Dunn County might 

have merely allowed, rather than caused, Slabey's constitutional 

deprivation. However, that would be a sea change in the law. 

Causation under Monell requires much more than "but-for" 

causation. Bd. of Cnty. Comm'rs of Bryan Cnty. v. Brown, 520 

U.S. 397, 404, 410 (1997) (citing Monell v. Dep't of Soc. 

Servs., 436 U.S. 658 (1978)). "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." City of Canton, 489 U.S. at 392. Whether Dunn 

County could have done more is not the applicable legal 

standard.
No. 2020AP877 

22

Id. at 390. In such a situation, "the need to train . . . can 

be said to be 'so obvious,' that failure to do so could properly 

be characterized as 'deliberate indifference' to constitutional 

rights." Id. at 390 n.10 (citation omitted). The Supreme Court 

dismissed the § 1983 claim and concluded that "the evidence in 

the record . . . does not meet th[is] standard of § 1983 

liability." Id. at 392. 

¶30 The Supreme Court again considered, but rejected, an 

argument that this "single-incident" theory applied in Board of 

Commissioners of Bryan County v. Brown, 520 U.S. 397. There, 

the § 1983 plaintiff argued that the municipality was liable for 

an officer's use of excessive force because it failed to 

adequately screen the officer's background prior to hiring him, 

and that such screening would have uncovered that the officer 

was previously "charged with assault and battery, resisting 

arrest, and public drunkenness." Id. at 412-13. The Court 

reasoned, "[e]ven assuming without deciding that proof of a 

single instance of inadequate screening could ever trigger 

municipal liability, the evidence in this case was insufficient 

to support a finding that, in hiring [the officer], [the 

Sheriff] disregarded a known or obvious risk of injury." Id. at 

412.

¶31 The Supreme Court also considered and rejected the 

single-incident theory posed in Connick v. Thompson, 563 U.S. 51 

(2011). In Connick a § 1983 plaintiff sued a municipality for a 

constitutional deprivation caused by a prosecutor's failure to 

turn over exculpatory evidence. Id. at 55-56. The Court 
No. 2020AP877 

23

reasoned that because prosecutors already received legal 

training on the issue, the § 1983 plaintiff's constitutional 

deprivation was not "so predictable that failing to train the 

prosecutors amounted to conscious disregard for defendants[]." 

Id. at 71 (emphasis omitted). The Court therefore concluded 

that this case did not fall within the "narrow range of 'singleincident' liability hypothesized in Canton as a possible 

exception to the pattern of violations necessary to prove 

deliberate indifference in § 1983 actions."10 Id. at 71-72. 

¶32 The Tenth Circuit in Schneider v. City of Grand 

Junction Police Department, 717 F.3d 760, similarly rejected use 

of the single-incident theory in a § 1983 claim. There, an 

officer sexually assaulted a 911 caller while responding to the 

call. Id. at 763. The plaintiff argued that, in light of a 

prior complaint against the officer, the municipality failed to 

adequately investigate, discipline, and supervise the officer. 

Id. at 766. The court rejected each of these claims against the 

municipality. The court relied on the facts that the 

municipality "conducted the criminal investigation regarding the 

[prior] complaint," and it "disciplined [the officer] with a pay 

cut and probation" along with a "notice of discipline [informing 

 

10 In each of these cases where the Supreme Court 

hypothesized that single-incident theory could apply, the 

plaintiffs brought failure-to-train claims, and the Court 

considered the possibility that the theory might apply only in 

such cases. We note that Slabey's claim is based on alleged 

failures to investigate, discipline, and supervise Boigenzahn, 

but not a failure to train him. 
No. 2020AP877 

24

the officer] that his conduct was unacceptable." Id. at 775, 

777. As for the failure-to-supervise claim, the court found "no 

evidence that additional controls or sanctions . . . would have 

had any more deterrent effect than the already-present threats 

of discharge and criminal punishment." Id. at 780.

¶33 Similarly, the First Circuit in Santiago v. Fenton, 

891 F.2d 373, 382 (1st Cir. 1989), rejected a § 1983 claim that 

was based on a single incident. The officer in Santiago used 

excessive force against the plaintiff, who argued the 

municipality failed to discipline the officer for an earlier 

incident. Id. The court nonetheless concluded that the 

municipality was entitled to summary judgment on the failure-todiscipline claim and stated:

The city and the department undisputedly had a policy 

of investigating complaints that expressly included 

the disciplining of officers in appropriate 

circumstances. In both of these instances the 

department conducted an investigation and hearing but 

decided that discipline was not appropriate. As we 

have indicated before, we cannot hold that the failure 

of a police department to discipline in a specific 

instance is an adequate basis for municipal liability 

under Monell.

Id.

¶34 Slabey places great reliance on the Seventh Circuit's 

decision in J.K.J. v. Polk County, 960 F.3d 367 (7th Cir. 2020) 

(en banc), where a § 1983 plaintiff succeeded on the singleincident theory.11 In J.K.J., the Seventh Circuit concluded that 

 

11 Four judges on the en banc panel dissented: Circuit 

Judges Easterbrook, Brennan, Bauer, and Sykes. 
No. 2020AP877 

25

Polk County, Wisconsin, acted with deliberate indifference "in 

the face of an obvious and known risk that its male guards would 

sexually assault female inmates." Id. at 381 (emphasis 

omitted). That case involved two inmates at the Polk County 

Jail who "endured repeated sexual assaults at the hands of [a] 

correctional officer." Id. at 370. 

¶35 When Polk County had earlier learned of similar 

allegations against a different guard, it "imposed minor 

discipline on the guard but from there took no institutional 

response——no review of its policy, no training for guards, no 

communication with inmates on how to report such abuse, no 

nothing." Id. at 370-71. The jail's Captain "knew of sexual 

comments male guards made about female inmates" and "admitted to 

himself participating in [it]." Id. at 382. The Captain also 

knew that an officer's conduct "began with watching [the inmate] 

shower, grew to requests to expose her body for him, and in time 

intensified to forcibly touching her in a sexual manner——all the 

while ordering her to 'keep quiet.'" Id. Importantly, "with 

red lights flashing, Polk County chose the one unavailable 

option——doing nothing. It did not change its sexual abuse 

policy, institute a training, inquire of female inmates, or even 

call a staff meeting." Id. at 383. Although Polk County did 

investigate and reprimand a guard for inappropriate sexual 

behavior, jail officials assured him that it was "not a big 

deal." Id. 

¶36 Unlike Polk County, this record reflects that Dunn 

County in fact required significant, relevant training of its 
No. 2020AP877 

26

officers and took nearly immediate action upon a complaint of 

noncompliant conduct. Dunn County thoroughly investigated the 

August 2015 complaint and acted in a timely manner to impose 

unpaid leave on the officer. Boigenzahn was sternly warned for 

the policy violations, which were passing notes between inmates 

and non-sexual physical contact with an inmate. He was warned 

that his behavior would not be tolerated and that he could be 

terminated. Leave without pay was one of the most severe 

options of discipline, just short of termination. When 

Boigenzahn returned to duty, he was required to continue 

training and monthly policy reviews.

¶37 Nine months had gone by with Boigenzahn working as a 

CO, and there was no indication of his noncompliance. The very 

next time the County learned that Boigenzahn was noncompliant 

because he had received a note from an inmate, he was 

terminated. In fact, unlike the facts in Polk County, Dunn

County first gained knowledge of this off-camera sexual assault 

only after the County had already terminated Boigenzahn.

¶38 Slabey argues Dunn County acted with deliberate 

indifference to a known or obvious consequence that Boigenzahn 

would sexually assault an inmate when it "failed to thoroughly 

investigate claims that Boigenzahn's conduct would cross a 

line," "failed to appropriately discipline Boigenzahn in light 

of the clear risk of harm that his conduct posed to inmates 

generally and Rachel Slabey specifically," and when it "failed 

to properly supervise Boigenzahn to prevent any further 

escalation of his misconduct." However, this allegation in the 
No. 2020AP877 

27

August 2015 complaint was thoroughly investigated. The County 

officials reviewed two weeks of surveillance video, interviewed 

inmates, and concluded that Boigenzahn committed a serious 

violation of County policy. The evidence demonstrated that 

Boigenzahn passed notes between inmates and had inmate nonsexual contact. The County acted within a month from allegation 

to discipline. The matter did not languish. Despite several 

less severe options, Boigenzahn was suspended for three days 

without pay and sternly warned, "If you fail to [correct your 

improper conduct], you will subject yourself to further 

disciplinary action, including discharge and termination of your 

employment with the County." He was also given additional PREA 

training two days before the assault. For about nine months 

after Boigenzahn returned, Dunn County had no reason to believe 

he was noncompliant. 

¶39 Nonetheless, Slabey argues that the County should have 

done more and, because it did not, it caused her constitutional 

deprivation. In other words, she argues that the County's 

deliberate indifference "caused Boigenzahn's conduct to escalate 

to Slabey's assault." However, Slabey offers insufficient 

evidence of how the County was deliberately indifferent given 

its policies, training, investigation, discipline, and 

additional stern warning of termination for conduct quite unlike 

a sexual assault. According to Slabey, the only way to 

safeguard against the wrong that was done to her would be that 

the County should have terminated Boigenzahn, constantly 

supervised him, or not allowed him to have any contact with 
No. 2020AP877 

28

female inmates.12 However, the record reflects that three COs 

worked the night shift, with two splitting up to do rounds in 

different parts of the Jail and the third staying in the central 

office.13 Additionally, staffing restrictions prevented the 

County from moving Boigenzahn off the night shift. In other 

words, constant supervision or moving Boigenzahn were unworkable 

options given Dunn County's Jail; therefore, the only acceptable 

option in hindsight would have been to terminate Boigenzahn for 

passing notes and nonsexual conduct. Accepting Slabey's 

arguments would make the County liable on a respondeat superior 

theory, a result the Supreme Court has explicitly rejected. 

Monell, 436 U.S. at 691.

¶40 In short, Dunn County is entitled to summary judgment 

because there is insufficient evidence for a reasonable fact 

finder to conclude that Dunn County was the moving force behind 

her being sexually assaulted. Boigenzahn sexually assaulting 

Slabey was the result of his action, which was completely 

forbidden by Dunn County and the criminal law. It is hindsight 

 

12 Slabey also identifies the County's failure to conduct a 

radio check during the 45 minutes that Boigenzahn was with 

Slabey, and its failure to make sure Slabey's bunk was in view 

of a surveillance camera as acts of deliberate indifference. 

However, these demonstrate the kind of "one-time negligent 

administration of [a] program" that is insufficient to satisfy 

Monell causation. Bryan Cnty., 520 U.S. at 408. 

13 The Jail Captain testified in her deposition that 

typically three COs worked the night shift, and that one of them 

stayed in the central office at all times. Boigenzahn testified 

in his deposition that two COs "split up" to do facility-wide 

checks.
No. 2020AP877 

29

alone that underlies Slabey's causation theory. Causation in 

the context of a § 1983 claim requires much more. "[L]esser 

standards . . . would require the federal [and state] courts 

endlessly to 'second-guess' the wisdom of municipal [programs], 

a task inappropriate for the federal [and state] judiciar[ies]." 

Doe, 15 F.3d at 453 (citing City of Canton, 489 U.S. at 392). 

Taken together, these facts do not demonstrate that the known or 

obvious consequence of the County's action or inaction was that 

Boigenzahn would sexually assault an inmate. 

¶41 Overall, Slabey's allegations do not rise to the level 

of a cognizable § 1983 claim against Dunn County. Just because 

the County could have, in hindsight, done some things 

differently, does not mean that the County was the moving force 

behind the assault. Section 1983 "does not provide plaintiffs 

or courts carte blanche to micromanage local governments 

throughout the United States." Connick, 563 U.S. at 68. The 

standards of a § 1983 claim under Monell are exacting. Slabey's 

claim does not survive that scrutiny. 

IV. CONCLUSION

¶42 Slabey argues that her 42 U.S.C. § 1983 claim against 

Dunn County survives summary judgment because she presented 

evidence sufficient for a reasonable jury to find that Dunn 

County violated her rights under the Eighth and Fourteenth 

Amendments to the United States Constitution when Boigenzahn 

sexually assaulted her. According to Slabey, Dunn County is 

liable because the "County was deliberately indifferent to a 

substantial risk of harm to Slabey by failing to thoroughly 
No. 2020AP877 

30

investigate, appropriately discipline, and adequately supervise 

Boigenzahn." Slabey argues that the circuit court erroneously 

granted Dunn County summary judgment, and that the court of 

appeals erred in affirming that result.

¶43 We conclude that Slabey's § 1983 claim against Dunn 

County fails because, under Monell, no reasonable fact finder

could conclude that Dunn County was the causal, moving force 

behind the sexual assault. A § 1983 plaintiff suing a 

municipality for a constitutional deprivation must prove that 

the municipality caused——that is, was the moving force behind——

the constitutional deprivation. This requires evidence "that 

the municipal action was taken with 'deliberate indifference' as 

to its known or obvious consequences." Bryan Cnty., 520 U.S. at 

407 (quoting City of Canton, 489 U.S. at 388). Here, there is 

insufficient evidence that Dunn County acted with deliberate 

indifference to a known or obvious consequence that Boigenzahn 

would sexually assault Slabey. The circuit court was correct to 

grant Dunn County summary judgment on Slabey's § 1983 

constitutional deprivation claim. We affirm the court of 

appeals.

By the Court.—The decision of the court of appeals is 

affirmed.
No. 2020AP877.jjk

1

¶44 JILL J. KAROFSKY, J. (dissenting). "The confinement 

setting is a tinderbox for sexual abuse." J.K.J. v. Polk Cnty., 

960 F.3d 367, 381 (7th Cir. 2020). 

¶45 While women are vulnerable almost everywhere in our 

society, they are especially at risk in correctional settings 

where an estimated 25 to 41 percent of incarcerated women are 

sexually abused. Hannah Brenner et al., Bars to Justice: The 

Impact of Rape Myths on Women in Prison, 17 Geo. J. Gender & L. 

521, 537-38 (2016). In such settings female prisoners are 

dependent on guards (who are disproportionately male) for their 

very existence. This includes "their safety as well as their 

access to food, medical care, recreation and even contact with 

family members." J.K.J., 960 F.3d at 381. Due to the 

imbalances of power, the correctional context is ripe for abuse 

as "[p]rison rape represents the intersection of masculine 

elitism and deprivations of civil rights." Maureen Brocco, 

Facing the Facts: The Guarantee Against Cruel and Unusual 

Punishment in Light of PLRA, Iqbal, and PREA, 16 J. Gender Race 

& Just. 917, 917 (2013). Sexual abuse is about power and 

control and "this psychosocial dynamic is amplified in the 

prison context." Id.

¶46 Victims of sexual abuse often confront profound 

physical, social, and psychological effects. These effects can 

be debilitating and overwhelming, and they are magnified in 

confinement settings. "Victims often endure great physical pain 

and sustain various injuries. Moreover, any episode of sexual 

assault could ultimately prove deadly since incarcerated victims 
No. 2020AP877.jjk

2

are at an increased risk of contracting sexually transmitted and 

other communicable diseases such as HIV, AIDS, tuberculosis, and 

hepatitis B and C." Kevin R. Corlew, Congress Attempts to Shine 

a Light on a Dark Problem: An In-Depth Look at the Prison Rape 

Elimination Act of 2003, 33 Am. J. Crim. L. 157, 160 (2006).

¶47 To combat the scourge of sexual assaults in the 

confinement setting, Congress passed the Prison Rape Elimination 

Act (PREA) in 2003. But the enactment of a law aimed at 

stopping prison rapes does not in and of itself put an end to 

sexual violence. Prisons and jails must take steps to prevent 

and detect sexual misconduct. And important to this case, when 

sexual abuse does occur, it is incumbent on the judicial system 

to hold to account those who are responsible in order to protect 

vulnerable inmates. It is here where the majority falls short. 

In wrongly concluding that the circuit court's grant of summary 

judgment for Dunn County should be upheld, the majority allows 

the county to escape all responsibility for (1) ignoring clear 

warning signs that former Dunn County correctional officer Ryan 

Boigenzahn had engaged in inappropriate and escalating behavior 

with female inmates, and (2) creating the circumstances that 

allowed Boigenzahn to sexually assault Rachel Slabey while she 

was incarcerated in the Dunn County Jail.
No. 2020AP877.jjk

3

I. BACKGROUND

¶48 Boigenzahn sexually assaulted Slabey1 while she was in 

her bunk in the Dunn County Jail on March 25, 2016.2 It was the 

middle of the night in the Huber Dorm.3 Boigenzahn was tasked 

with checking the women's dorm despite his recent suspension for 

violating the jail's fraternization policy. Boigenzahn surveyed 

the women's dorm alone, unmonitored, and entirely unsupervised. 

That night, Boigenzahn spent 45 minutes in Slabey's dorm, an 

extraordinarily long time compared to the few seconds that 

guards usually took to check the dorm during the night. And 

although the Dunn County Jail practice is for the central office 

of the jail to conduct radio checks when an officer fails to 

report back to the central office after 10 minutes, no 

supervisor checked in on Boigenzahn during the 45 minutes he was 

in the dorm, despite his known history of fraternization. By 

 

1 Normally, to protect the dignity and privacy of Slabey, a 

victim of sexual assault, I would use initials or pseudonyms to 

identify her. However, because Slabey filed this lawsuit using 

her real name, I do not follow that practice for her here. To 

protect the dignity and privacy of other inmates, who were 

witnesses or victims of Boigenzahn, I use initials.

2 Mindful that this is a summary judgment review, I will set 

out the factual background necessary to understanding this case 

by presenting Slabey's evidence as true while drawing all 

reasonable inferences in her favor, as the court must when 

reviewing a summary judgment decision. See Burbank Grease 

Servs., LLC v. Sokolowski, 2006 WI 103, ¶40, 294 Wis. 2d 274, 

717 N.W.2d 781. 

3 A Huber facility is a county correctional facility that 

houses inmates who have been granted leave privileges (typically 

work release) under Wis. Stat. § 303.08(1). See Wis. Stat. 

§ 303.09.
No. 2020AP877.jjk

4

all accounts, no one was monitoring Boigenzahn as he abandoned 

his duties to prowl around Slabey's dorm.

¶49 The jail assigned Slabey to the only bunk in the dorm 

that was entirely unmonitored by security cameras, a fact both 

Boigenzahn and Slabey knew. Boigenzahn himself previously 

denied Slabey's request to be moved to a different bunk.

Additionally, the jail recently transferred Slabey from 

administrative segregation, causing her concern that if she did 

anything to "make a scene" or displease Boigenzahn, she would be 

transferred back. And, unsurprisingly, Slabey did not think 

that anyone would believe her or protect her if she spoke up and 

complained about Boigenzahn. In a word, Slabey was vulnerable.

¶50 Armed with the knowledge of his victim's 

vulnerabilities, Boigenzahn entered the Huber Dorm, found Slabey 

and her bunkmate, D.S., and began talking with them. One of the 

topics of conversation was Boigenzahn's reputation for spending 

an inappropriate amount of time with female inmates. Slabey 

"made a comment [to Boigenzahn] about do you ever get in trouble 

. . . . And [Boigenzahn was] like yeah, I've gotten in trouble 

before, he's like, but I can——pretty much saying he didn't care, 

you know." As he was talking to the inmates, Boigenzahn began 

touching Slabey, first by rubbing her hand. Slabey tried to 

protect herself by moving away and lying down, but Boigenzahn 

persisted. He went after her, grabbing her pants, then her leg, 

then Boigenzahn shoved his hand down Slabey's pants and inside 

her underwear.
No. 2020AP877.jjk

5

¶51 While Boigenzahn was sexually assaulting her, Slabey, 

now completely defenseless, went silent. She did not want to 

call attention to his actions "because it was so quiet in there" 

and she "didn't want to have a scene or have him say something 

like, oh, [she] did something and put [her] back in 

[segregation]." During the sexual assault, Slabey felt 

"confused," "in shock" and "didn't know what to do." After 

sexually assaulting her, Boigenzahn asked Slabey if she would 

tell anyone. Slabey told him no, and soon after, Boigenzahn 

left the Huber Dorm.

¶52 This sexual assault did not occur without warning. It 

was not a freak occurrence, a force majeure that could have 

neither been foreseen nor prevented. Instead, sheriff's 

department officials——importantly here, the Sheriff himself——

first ignored the clear warning signs that Boigenzahn had 

already engaged in inappropriate and escalating behavior with 

female inmates, and then created the circumstances that allowed 

Boigenzahn to sexually assault Slabey.

¶53 Prior to the sexual assault, the Sheriff had ample 

warning that Boigenzahn was, in the words of one inmate, 

"dangerously close to crossing the line." Sheriff's department 

officials were first alerted to Boigenzahn's conduct in July 

2015, about eight months before the sexual assault. Inmate 

J.W.B. informed a correctional officer, and subsequently a jail 

sergeant, that officials needed to "keep a close eye on" the 
No. 2020AP877.jjk

6

male correctional staff.4 When asked for an example, J.W.B. 

explained that on two separate occasions, an officer passed 

notes between female and male inmates. J.W.B. originally 

refused to identify the officer in question for fear of 

retaliation, but upon further questioning, she identified 

Boigenzahn. Passing notes was a violation of the Dunn County 

Jail's fraternization policy, one that historically resulted in 

suspension or termination. Despite the seriousness of the 

allegations, the sergeant only reviewed surveillance video for 

one of the two instances J.W.B. reported, and he failed to 

question Boigenzahn or the inmates directly. After this cursory 

investigation, the sergeant concluded that there was no factual 

basis for J.W.B's claims.

¶54 About one week later, another inmate, B.M., told a 

different sergeant that Boigenzahn was dangerously close to 

"crossing the line," and that he had been getting "too chummy" 

with some of the female inmates. B.M. said that she had not yet 

witnessed anything sexual, but she believed "that was a 

possibility if things progressed." As an example, she told this 

 

4 When questioned whether her concerns were "in regards to 

fraternization," J.W.B. indicated that she did not understand 

what fraternization meant. The sergeant then asked whether the 

officer "was developing a relationship with an inmate." J.W.B. 

answered in the negative, but there was no additional 

explanation of what the sergeant meant by "relationship" in that 

context nor any additional attempt to understand what J.W.B. 

understood "relationship" to mean. This exchange illustrates 

how important it is to ensure that female inmates (as well as 

guards) understand "what abuse entails," particularly since 

"they may come from life experiences that have blurred the lines 

of abnormal and normal relationships." J.K.J. v. Polk Cnty., 

960 F.3d 367, 375 (7th Cir. 2020).
No. 2020AP877.jjk

7

sergeant that Boigenzahn had been talking with another inmate, 

A.D., when A.D. playfully slapped Boigenzahn on the chest. B.M. 

said that if there was an opportunity when there were no cameras 

around, "something might happen," and "all the females in the 

Jail talk about that." If Boigenzahn hadn't already crossed the 

"bright line" that staff are not supposed to cross, B.M. said, 

"he [was] getting dangerously close to doing it."

¶55 In response to the above reports, sheriff's department 

officials reviewed surveillance footage and found two incidents 

that corroborated B.M.'s concerns. First, on July 29, 

Boigenzahn entered the Huber Dorm, stepped out of camera range 

for a few minutes, then stepped back into view when another 

officer entered the room. While the other officer was handing 

out breakfast, Boigenzahn reached out and "playfully" stepped on 

A.D.'s foot. She then stepped back on his foot. Second, on 

August 6, Boigenzahn entered the dorm and shut the door behind 

him. He gestured "as if motioning someone to come in his 

direction," at which point A.D. ran over to him and "brush[ed] 

him with her hand on his shoulder/chest area."

¶56 Sheriff's department officials then questioned A.D., 

asking her whether any officer ever made her feel uncomfortable. 

A.D. "immediately" informed the officials that Boigenzahn made 

her feel uncomfortable and provided the following three 

examples. First, she described an instance where her hand and 

Boigenzahn's hands accidentally touched. She pulled her hand 

away and apologized, but he responded that "it was alright, he 

didn't mind." Second, other inmates told her that Boigenzahn 
No. 2020AP877.jjk

8

seemed to be "obsessed" with her, and they observed him standing 

and watching her sleep. Third, she explained that he just 

"lingered too long" around her. Like J.W.B., A.D. explained 

that she did not report Boigenzahn sooner because she was afraid 

of retaliation. In response to A.D.'s statements, the sergeant

pressed A.D. and asked "if there had ever been anything more

than statements made or him watching her." In doing so, the 

sergeant seemingly dismissed A.D.'s claim that Boigenzahn was 

obsessed with her, watched her sleep, and lingered too long 

around her, as if that information alone were unimportant to the 

investigation.

¶57 Sheriff's department officials then met with 

Boigenzahn and questioned him about the inmates' allegations. 

Boigenzahn initially lied to the officials and denied passing 

notes between inmates, only confessing after he learned that he 

would be terminated if he were not truthful. He denied that he 

acted inappropriately toward A.D., which officials also found to 

be false.

¶58 Despite knowing that Boigenzahn had, at the very 

least, violated the jail's fraternization policy and attempted 

to conceal and lie about his violations, the Sheriff decided 

against terminating Boigenzahn. The Sheriff made this choice 

despite the fact that violations of the fraternization policy 

"historically" resulted in termination, and despite the fact 

that Boigenzahn's lying, in and of itself, was grounds for 

termination. The Sheriff opted instead for a far more lenient 

response and suspended Boigenzahn for three days before allowing 
No. 2020AP877.jjk

9

him to return to work——in the same position——where he continued 

to have unfettered access to vulnerable women inmates. The 

Sheriff did not put Boigenzahn on a different shift, one where 

more staffing would allow for more supervision. He did not 

assign Boigenzahn to a different section, away from female 

inmates. He did not bar Boigenzahn from having further 

unsupervised contact with female inmates; in fact, he did not 

assign any staff to further monitor or investigate Boigenzahn at 

all. Instead, the Sheriff sent an officer who violated jail 

policies, lied to officials, and raised such serious red flags 

that multiple inmates reported him despite fears of retaliation, 

back to guard female inmates on the lightest-staffed shift with 

little to no monitoring. And that is how former officer 

Boigenzahn accessed, cornered, and sexually assaulted, Slabey on 

March 25, 2016.

II. ANALYSIS

¶59 When Dunn County took Slabey into custody, it assumed 

an affirmative duty to protect her from harm. DeShaney v. 

Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 199-200 

(1989) ("When the State takes a person into its custody and 

holds [her] there against [her] will, the Constitution imposes 

upon it a corresponding duty to assume some responsibility for 

[her] safety and general well-being."). Sexual assault is one 

of those harms, for while the Eighth Amendment "does not mandate 

comfortable prisons," sexual assault "is simply not part of the 

penalty that criminal offenders pay for their offenses against 

society." See Farmer v. Brennan, 511 U.S. 825, 832-834 (1994)
No. 2020AP877.jjk

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(internal citations omitted). Sexual offenses "tend . . . to 

cause significant distress and often lasting psychological 

harm," Washington v. Hively, 695 F.3d 641, 643 (7th Cir. 2012), 

and there is little doubt that Slabey's Eighth Amendment rights 

were violated when Boigenzahn sexually assaulted her. The only 

question here is whether Slabey may hold Dunn County accountable 

under 42 U.S.C. § 1983, which "plainly imposes liability on a 

government that, under color of some official policy, 'causes'

an employee to violate another's constitutional rights." See

Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 

658, 692 (1978).

¶60 While the standards for establishing municipal 

liability under § 1983 are rigorous, "they are not 

insurmountable." J.K.J., 930 F.3d at 378. In order to 

establish liability and survive summary judgment on her claim 

against Dunn County, Slabey must bring sufficient evidence for a 

jury to reasonably find that Dunn County (1) had an official 

policy, custom, or decision, (2) that demonstrated the requisite 

level of culpability, and (3) caused her injury. See Bd. of 

Cnty. Comm'rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 403-

404 (1997). I will discuss each of these elements in turn 

before explaining why a jury could reasonably find for Slabey on 

each.

¶61 First, Slabey must identify an official Dunn County 

policy or custom that caused her injury. Monell, 436 U.S. at 

690. The Supreme Court has recognized that a decision by an 

official with final policy-making authority meets this 
No. 2020AP877.jjk

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requirement——that is, municipal liability attaches when "a 

deliberate choice to follow a course of action is made from 

among various alternatives by the official or officials 

responsible for establishing final policy with respect to the 

subject matter in question." Pembaur v. City of Cincinnati, 475 

U.S. 469, 483 (1986). Inaction, as well as action, may serve as 

the basis for municipal liability, depending on the 

circumstances. Connick v. Thompson, 563 U.S. 51, 61-62 (2011)

("[a] policy of inaction in light of notice that its program 

will cause constitutional violations is the functional 

equivalent of a decision by the city itself to violate the 

Constitution." (internal citations omitted)).

¶62 Second, Slabey must establish Dunn County's 

culpability, which under Monell means that she must provide 

sufficient evidence for a jury to find that the county's actions 

demonstrated a "deliberate indifference" to the "known or 

obvious" consequence that a constitutional violation would 

occur. Bryan Cnty., 520 U.S. at 407. While a pattern of 

constitutional violations is "ordinarily necessary" to establish 

the requisite notice that an official course of conduct is 

inadequate, the risk of a constitutional violation may be so 

obvious that the municipality's actions could demonstrate 

deliberate indifference to that risk. See Connick, 563 U.S. at 

64. The Supreme Court in City of Canton v. Harris provided the 

following example of deliberate indifference: if city policymakers, having armed their police officers with firearms, fail 

to train those officers on the constitutional limitations on 
No. 2020AP877.jjk

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deadly force, that failure could be characterized as deliberate 

indifference. City of Canton, Ohio v. Harris, 489 U.S. 378, 390 

n. 10 (1989). The Seventh Circuit in Glisson v. Indiana 

Department of Corrections provided another example: the failure 

to establish coordinated care protocols for inmates with chronic 

illnesses could reflect deliberate indifference if a jury found 

the need for those protocols obvious, even absent prior 

constitutional violations. Glisson v. Ind. Dep't of Corr., 849 

F.3d 372, 382 (7th Cir. 2017). And in J.K.J. v. Polk County the 

Seventh Circuit provided another, one relevant to this case: the 

failure to institute more robust policies to prevent the sexual 

assault of female inmates in the face of a guard's escalating 

behavior can demonstrate deliberate indifference to the known or 

obvious risk of sexual assault. J.K.J., 960 F.3d at 385.

¶63 Third, Slabey must establish sufficient evidence for a 

jury to find that Dunn County's actions caused her injury. That 

is, the official actions must be the "moving force" behind the 

constitutional violation. Bryan Cnty., 520 U.S. at 400 (1997). 

A municipality cannot be held vicariously liable for the actions 

of its employee solely because it employed that employee. 

Monell, 436 U.S. at 691. Instead, the plaintiff must 

"demonstrate a direct causal link between the municipal action 

and the deprivation of federal rights." Bryan Cnty., 520 U.S. 

at 404.

¶64 Slabey established sufficient evidence for a jury to 

find for her on each of these three requirements by: (1) 

identifying a course of action by a final policy-maker——namely, 
No. 2020AP877.jjk

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the Sheriff's choice to return Boigenzahn to his standard shift 

with no additional supervision; (2) alleging sufficient evidence 

for a jury to conclude that the risk of sexual assault was so 

predictable that the Sheriff's course of action constituted 

deliberate indifference; and (3) alleging sufficient evidence to 

show that the Sheriff's course of action caused the sexual 

assault. Her § 1983 claim against Dunn County should therefore 

survive summary judgment. I address how Slabey met each 

requirement in more detail below.

A. Official Policy, Custom, or Decision

¶65 Slabey met the first requirement for municipal 

liability under § 1983 because she identified a "deliberate 

choice to follow a course of action" by a final policy-maker. 

See Pembaur, 475 U.S. at 483. As Slabey points out, and Dunn 

County does not dispute, the Sheriff was the final policy-maker 

for staffing and disciplinary decisions at the Dunn County Jail. 

And he, as that final policy-maker, deliberately chose to adopt 

a particular course of action——to retain Boigenzahn and send him 

back to guard female inmates alone, on the lightest-staffed 

shift, with no additional supervision, investigation, or follow-
No. 2020AP877.jjk

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up.5 The Sheriff had "various alternatives" to his course of 

action. See Pembaur, 475 U.S. at 483. One of those 

alternatives was to terminate Boigenzahn. Termination was not 

just an option, but (as the Sheriff acknowledged), the typical

disciplinary response for violations of the fraternization 

policy. Another alternative was to adjust Boigenzahn's schedule 

to accommodate increased supervision and monitoring of his 

behavior. The Sheriff considered these alternatives, but 

instead chose the one course of action that would allow 

Boigenzahn to spend significant time alone and unmonitored with 

female inmates.

¶66 Slabey may not have identified a written policy that 

caused her injury, but she does not need to. Monell liability 

attaches where "a deliberate choice to follow a course of action 

 

5 Because Slabey focused on this particular course of 

action, this dissent will too. However, I note that in similar 

cases, plaintiffs have presented expert testimony identifying a 

variety of additional measures that jails must take to protect 

female inmates from sexual assaults. These measures include 

"informing guards of the inherent vulnerability the confinement 

setting presents to female inmates, educating jailers on the 

symptoms of an inmate suffering from the trauma of abuse, 

requiring officers to report each other's misconduct, or taking 

any time to otherwise instruct guards on matters of prevention 

and detection." J.K.J., 960 F.3d 367 at 379. Prevention and 

detection measures also include: a designated PREA coordinator, 

staff training on what to look for and how to report abuse as 

well as how to make inmates feel comfortable coming forward, 

taking additional care with job assignments within facilities, 

ensuring that all inmates understand their right to be free from 

sexual abuse and harassment as well as making sure inmates 

understand what abuse entails, and a confidential way for 

inmates to report abuse. Id. at 375. An additional, vital, and 

seemingly obvious prevention measure is not allowing male guards 

to be alone and unmonitored with female prisoners. Cash v. 

Cnty. of Erie, 654 F.3d 324, 331 (2d Cir. 2011).
No. 2020AP877.jjk

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is made among various alternatives by the official or officials 

responsible for establishing final policy with respect to the 

subject matter in question." Pembaur, 475 U.S. at 483. Slabey 

sufficiently identified that deliberate choice here.

B. Culpability

¶67 Slabey also met the culpability requirement because 

she presented enough evidence for a jury to reasonably find that 

the Sheriff's official course of action was taken with 

deliberate indifference to the known or obvious risk that a 

sexual assault would occur. Whether the risks were known or 

obvious and whether the Sheriff acted with deliberate 

indifference are questions of fact. See Sherrod v. Lingle, 223 

F.3d 605, 611 (7th Cir. 2000). Next I demonstrate how a jury, 

assessing the facts of this case, could reasonably conclude 

that: (1) Boigenzahn’s prior behavior created a known or obvious 

risk that he would sexually assault an inmate and (2) the 

Sheriff's decision to send Boigenzahn back to guard female 

inmates reflected deliberate indifference to that risk.

1. Known or Obvious Risk of Sexual Assault

¶68 When evaluating Boigenzahn's prior conduct to 

determine whether the risk of sexual assault was known or 

obvious, it is important to note that "consent is not an issue" 

when a correctional officer has "sexual contact or sexual 

intercourse with an individual who is confined in a correctional 

institution if the actor is a correctional staff member." Wis. 

Stat. §§ 940.225(2)(h), 940.225(4). In enacting Wis. Stat. 

§ 940.225(2)(h), the legislature barred consent from being a 
No. 2020AP877.jjk

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defense in this context because it recognized that the power 

imbalance between correctional staff and inmates in the 

confinement setting, coupled with restrictions on inmates'

freedom, make it impossible for inmates to freely consent. 

Because an inmate cannot consent to sexual conduct with a 

correctional staff member, an inmate's "words or overt actions 

that might indicate a freely given agreement to have sexual 

intercourse or sexual contact" in the outside world are 

irrelevant in this instance. See Wis. Stat. § 940.225(4). 

Accordingly, the deliberate indifference inquiry must be viewed 

through the correct lens of the confinement setting. And 

through this lens, conduct that merely foreshadows consensual 

sexual contact in other contexts may serve as notice of an 

obvious risk of sexual assault in the confinement setting. See

Cash v. Cnty. of Erie, 654 F.3d 324, 337 (2d Cir. 2011) (noting 

that because (like Wisconsin) New York state law did not 

tolerate any sexual contact between guards and prisoners, jail 

officials "were thus obligated to do the same in carrying out 

their affirmative duty to protect prisoners from harm.").

¶69 A jury aware of the distinctive nature of sexual abuse 

in the correctional setting could, based on Slabey's evidence 

and reasonable inferences drawn from that evidence, make three 

factual findings: (1) Boigenzahn engaged in inappropriate 

behavior with female inmates, based on the corroborated reports 

of three different inmates; (2) Boigenzahn's behavior, 

particularly with A.D., was not just inappropriate, but sexually 

charged; and (3) Boigenzahn had a propensity to lie and conceal 
No. 2020AP877.jjk

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inappropriate behavior unless directly confronted, and sheriff's 

department officials knew about this propensity. Based on these 

findings, a jury could reasonably conclude that the Sheriff had 

notice that Boigenzahn was engaging in a pattern of escalating 

and inappropriate behavior toward female inmates——including 

physical conduct——that was likely to lead to sexual assault. I 

will address each of the potential factual findings in turn.

¶70 First, based on the corroborated reports of three 

different inmates, a jury could find that Boigenzahn engaged in 

inappropriate behavior with female inmates, some of which was 

physical in nature. Two of those inmates warned sheriff's 

department officials that the behavior was likely to escalate, 

or "cross the line" if it had not already. One of the inmates, 

A.D., reported that Boigenzahn "made her uncomfortable," told 

her that "he didn't mind" when their hands accidentally touched, 

and, according to other inmates, even watched her while she 

slept. Additionally, Sheriff's department officials viewed 

video surveillance of Boigenzahn which corroborated some of the 

inmates' reports.

¶71 Second, a jury could reasonably infer that 

Boigenzahn's behavior, particularly with A.D., was not only 

inappropriate, but sexually charged. Just because a 

municipality labels behaviors as "fraternization" instead of 

sexual misconduct does not mean that the majority should defer 

to that characterization, or assume that a jury must. As Dunn 

County's own sexual misconduct policy acknowledges, sexual 

conduct encompasses a "range of behaviors," including, for 
No. 2020AP877.jjk

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example, "conduct of a sexual nature or implication" and 

"unreasonable or unnecessary invasion of privacy." A jury could 

reasonably conclude that Boigenzahn's physical conduct with A.D. 

was "conduct of a sexual implication." A jury could also 

reasonably conclude that "obsessing" over an inmate and watching 

her sleep is an "unreasonable or unnecessary invasion of 

privacy."

¶72 The majority errs when it dismisses Boigenzahn's prior 

behaviors and mischaracterizes them as "nonsexual." See

majority op. at ¶¶36, 39. In doing so, the majority incorrectly 

draws inferences in Dunn County's favor, rather than Slabey's 

favor. See Burbank Grease Servs., LLC v. Sokolowski, 2006 WI 

103, ¶40, 294 Wis. 2d 274, 717 N.W.2d 781 (when reviewing a 

summary judgment decision, "we draw all reasonable inferences 

from the evidence in the light most favorable to the non-moving 

party."). Sheriff's department officials viewed surveillance 

footage of Boigenzahn quite literally "playing footsie" with 

A.D., which even the Oxford English Dictionary recognizes as 

"surreptitiously touching a person's foot or ankle with one's 

foot . . . as a playful expression of sexual attraction" 

(emphasis added). Officials also viewed footage of A.D. 

stroking Boigenzahn's chest and shoulder after he beckoned her 

over to him. And A.D. reported that Boigenzahn told her that he 

"didn't mind" when their hands touched. A jury, viewing 

Boigenzahn's behavior in the proper context of the confinement 

setting and drawing on their life experiences and common sense, 
No. 2020AP877.jjk

19

could reasonably conclude that his actions were sexually 

charged.

¶73 Third, a jury could find that Boigenzahn had a 

propensity to lie and conceal inappropriate behavior, and that 

the sheriff's department officials knew about his dishonesty. 

Officials knew that Boigenzahn initially lied about passing 

notes between male and female inmates, and only confessed when 

told that he would be terminated for being untruthful. 

Additionally, Boigenzahn himself admitted to officials that he 

"tends not to tell the truth." And finally, officials knew that 

Boigenzahn appeared to intentionally stand out of camera view in 

the Huber Dorm. A jury could find that the Sheriff knew that he 

could not trust Boigenzahn due to his deceptive tendencies, yet 

chose to put him back in the female dorm, without the

supervision or monitoring that Boigenzahn clearly needed.

¶74 Taking all of these facts and inferences together, a 

jury could find that there was a known or obvious risk that 

Boigenzahn's behavior would escalate to sexual assault. The 

jury could find that the Sheriff received notice from multiple 

female inmates that Boigenzahn's behavior was escalating, had 

become physical, and would cross the line from merely 

inappropriate to predatory, if it had not already. The jury 

could find that this escalating behavior was, at the very least, 

"conduct of a sexual implication" that——along with the inmates' 

warnings——created notice of an obvious risk that sexual assault 

would occur. The jury could find that Boigenzahn had already 

lied to sheriff's department officials and attempted to evade 
No. 2020AP877.jjk

20

detection for his behaviors——thus, he could not be trusted and 

clearly required supervision and monitoring. Taking all these 

facts together in the context of the confinement setting, with 

its stark power imbalance between guards and female inmates, the 

jury could reasonably conclude that Boigenzahn's behavior 

created a known or obvious risk that he would sexually assault 

an inmate. 

2. Deliberate Indifference to the Known or Obvious Risk of 

Sexual Assault

¶75 A jury, having found that Boigenzahn's actions created 

an obvious risk that sexual assault would occur, could further 

find that the Sheriff's decision to put Boigenzahn back on his 

normal shift reflected deliberate indifference to that risk.

¶76 In determining that the Sheriff was not deliberately 

indifferent, the majority suggests that the Sheriff's chosen 

course of action——suspending Boigenzahn for three days——was a 

"severe" response to Boigenzahn's behavior, and that the Sheriff 

chose it over less severe options. See majority op. at ¶¶36, 

38. This does not square with the Sheriff's admission that 

"historically fraternization turns into a termination," and that 

a short suspension was the "minimum" appropriate disciplinary 

action for passing notes. The Sheriff's disciplinary response 

was lenient, based on his own admissions, and does not preclude 

a finding of deliberate indifference as a matter of law. See 

Cash, 654 F.3d 324 (2d Cir. 2011) (upholding a jury finding of 

deliberate indifference even though the sheriff's department had 

previously suspended a guard for misconduct).
No. 2020AP877.jjk

21

¶77 The majority also concludes that the Sheriff's 

decision to send Boigenzahn back to guard the female prisoners 

on the night shift was not deliberate indifference in part 

because moving Boigenzahn to a different shift with more 

supervision "would affect somebody on day shift that would be 

bumped off from that shift and forced onto the night shift." 

See majority op. at ¶11. But the administrative inconveniences 

inherent to protecting constitutional rights in the confinement 

setting are no excuse for failing to protect those rights. For 

instance, the difficulty in finding the time and staff to train 

officers about the constitutional limits on excessive force 

before handing those officers firearms would not preclude a 

finding of deliberate indifference. See Canton, 489 U.S. at 390 

n. 10. Nor would any difficulties, staffing or otherwise, in 

enacting "centralized treatment protocols for chronically ill 

inmates." See Glisson, 849 F.3d at 382. Replacing one staff 

member or changing one staff member's schedule is not 

"unworkable," as the majority suggests, see majority op. at ¶39, 

but in fact a relatively small undertaking compared to adopting 

a new training program or revamping healthcare protocols; 

therefore, it is difficult to understand why the inconvenience 

of doing either would preclude a jury from finding for Slabey on 

the deliberate indifference element of the Monell test. The 

Sheriff may have decided to retain Boigenzahn despite his 

behavior toward female inmates in part because replacing him 

would be inconvenient, and "[Boigenzahn] had been a pretty good 

jailer on other notes," but the choice still demonstrated a 
No. 2020AP877.jjk

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deliberate indifference to the "note" that mattered here——the 

safety of female inmates.

C. Causation

¶78 Slabey also established enough evidence for a jury to 

reasonably find that the Sheriff's course of action caused 

Slabey's injury.

¶79 Much of the same evidence that supports Slabey's claim 

on the culpability requirement also supports it on the causation 

requirement. Specifically, evidence of an obvious risk of 

sexual assault can support both a finding of "deliberate 

indifference" and "an inference of causation——that the 

municipality's indifference led directly to the very consequence 

that was so predictable." Bryan Cnty., 520 U.S. at 409-410. If 

a jury could reasonably conclude that the risk of sexual assault 

was obvious enough that the failure to take action constituted 

deliberate indifference, it may take "but a small inferential 

step" for a jury to find that the failure to take action caused 

the injury. J.K.J., 960 F.3d at 384. Causation, like 

culpability, is a fact question for a jury——"finding causation 

is not a mechanical exercise like working a math problem and 

getting an answer, but instead requires jurors to view evidence 

in its totality, draw on their life experiences and common 

sense, and then reach reasonable conclusions about the effects 

of particular action and inaction" (emphasis in original). Id.

at 384–385. Here, Slabey established enough evidence for a jury 

to do so.
No. 2020AP877.jjk

23

¶80 Slabey's evidence "paved multiple roads for the jury 

to travel" to find that the Sheriff's actions caused her injury. 

See id. at 385. A jury could find that if the Sheriff had 

pursued the typical course of action and terminated Boigenzahn 

for his violations of the fraternization policy (and arguably, 

the sexual misconduct policy, as discussed above), Boigenzahn 

would not have had access to sexually assault Slabey or any 

other inmate. A jury could alternatively find that if the 

Sheriff had instead switched Boigenzahn to a shift that allowed 

for more supervision, Boigenzahn would have been prevented from 

spending a significant amount of time alone and unmonitored with 

female inmates, and thus would have either been dissuaded from 

sexually assaulting an inmate for fear of the consequences, or 

denied the opportunity to sexually assault an inmate at all. A 

jury could also infer that the Sheriff's failure to take any 

additional action to protect female inmates both emboldened 

Boigenzahn and silenced inmates who now understood that 

objecting to his behavior was essentially futile. Since any of 

these inferences would be reasonable, a jury could conclude from 

Slabey's evidence that the Sheriff's course of action caused the 

sexual assault to happen.

¶81 The Sheriff's actions were the "moving force" behind 

Slabey's injuries. See Bryan Cnty., 520 U.S. at 400. This is 

not a case where a plaintiff is attempting to prove causation 

simply by showing that she would not have been sexually 

assaulted "but for" the municipality's original decision to hire 

the perpetrator. See id. Instead, Slabey established that her 
No. 2020AP877.jjk

24

sexual assault was caused by the Sheriff's decision to put a 

guard with a known history of inappropriate and arguably sexual 

conduct toward female inmates back in a position where he would 

be alone and unmonitored with those inmates. The Sheriff's 

decision was thus not only a "but for" cause of Slabey's 

injuries, but "closely related to the ultimate injury." See

Canton, 489 U.S. at 391. A jury could therefore reasonably find 

that Slabey has met the causation requirement.

¶82 Because Slabey established sufficient evidence that a 

final policy-maker acted with deliberate indifference to a 

serious risk of sexual assault, and in doing so caused her 

sexual assault, she has met all three requirements for Monell

liability. Based on the evidence Slabey provided, a jury could 

reasonably find that the Sheriff knew that he was essentially 

sending a fox back to guard the hen house, and in doing so was 

deliberately indifferent to the constitutional rights of Dunn 

County inmates. Therefore, Slabey's § 1983 claim against Dunn 

County should survive summary judgment.

III. CONCLUSION

¶83 Based on the evidence Slabey provided, a jury could 

find that Dunn County Sheriff's Department officials ignored the 

clear warning signs that Boigenzahn had already engaged in 

inappropriate and escalating behavior with female inmates and 

then created the circumstances that allowed Boigenzahn to 

sexually assault Slabey. The Sheriff's deliberate course of 

action enabled Boigenzahn to escape detection for 45 minutes as 

he was working alone, unsupervised, and unmonitored in the Huber 
No. 2020AP877.jjk

25

dorm on the night he sexually assaulted Slabey. Slabey provided 

sufficient evidence for a jury to reasonably find that the 

Sheriff's course of action both demonstrated deliberate 

indifference and was the causal "moving force" behind the sexual 

assault. Slabey's § 1983 claim against Dunn County should 

therefore survive summary judgment.

¶84 When municipalities take inmates into custody, they 

assume a responsibility to protect them from sexual assault. 

But this responsibility means little if the justice system is 

unwilling to hold municipalities accountable when they fail to 

protect their inmates. When municipalities are not held to 

account, measures like PREA, enacted to eliminate sexual assault 

in jails and prisons, are reduced to little more than a 

perfunctory policy for correctional staff to sign, then freely 

disregard. Dunn County threw a match into the tinderbox when it 

sent Boigenzahn back to guard female inmates. The majority's 

failure to hold Dunn County accountable is akin to standing idly 

by as the fire burns.

¶85 I am authorized to state that Justice ANN WALSH 

BRADLEY joins this dissent.
No. 2020AP877.jjk

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