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Seventh Circuit Reverses $6.7 Million Indemnification Award for Milwaukee Jail Rape

by Derek Gilna

On September 14, 2018, the Seventh Circuit Court of Appeals reversed a Milwaukee, Wisconsin federal jury verdict that awarded $6.7 million in damages against Milwaukee County to a woman raped by a guard while she was housed at the county jail. [See: PLN, Feb. 2018, p.26; Sept. 2017, p.52].

The appellate ruling let the jury verdict and award stand against the guard, Xavier D. Thicklen, but held Milwaukee County was not obligated to indemnify him for the damages award. 

The Court of Appeals noted that when Thicklen was hired as a jailer in 2012, he was advised of the jail’s zero tolerance policy as to sexual contact with prisoners and received training to avoid such contact. However, notwithstanding that policy and training, he repeatedly raped prisoner Shonda Martin, 19, including while she was pregnant and after she gave birth.

Martin filed a civil rights suit in federal court against both Thicklen and the county for violation of her Fourteenth Amendment due process rights, seeking indemnification under Wisconsin Statute 895.46. She also sued for damages for being shackled while she gave birth, for failure of the county to intervene and for indemnification by the county for the actions of its employee.

County officials moved for summary judgment on all but the shackling counts, and the district court dismissed the failure to intervene and assault charges against the county but let the indemnification claim stand.

The case then went to trial; Thicklen did not appear, and the jury returned verdicts on the § 1983 and indemnification claims, awarding $1.7 million in compensatory damages and $5 million in punitive damages, but not awarding damages on the shackling claim against both Thicklen and Milwaukee County.

On appeal, the Seventh Circuit wrote, “Martin did not introduce any evidence from which a reasonable jury could conclude the sexual assaults were of the same or similar kind of conduct as that which County employed Thicklen to perform.... She failed as a matter of law to sustain her burden. Therefore, County was entitled to judgment as a matter of law on indemnification.” 

All of the judgments against Thicklen, who was not a party to the appeal, were allowed to stand. But since he was not indemnified by the county, it is highly unlikely that Martin will be able to collect the $6.7 million judgment from him alone. See: Martin v. Milwaukee County, 904 F.3d 544 (7th Cir. 2018), rehearing and rehearing en banc denied

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Related legal case

Martin v. Milwaukee County