Clarke Can’t Delay Class Action Suit

A class action lawsuit alleging Milwaukee County jailers shackled pregnant inmates during childbirth will go to trial June 5.

U.S. District Judge J.P. Stadtmueller denied a motion from lawyers representing the defendants, including Sheriff David Clarke, and the main plaintiff in the case, identified in court documents as Jane Doe, asking for separate trials over the class action allegations and allegations that former Milwaukee County jailer Xavier D. Thicklen sexually assaulted Jane Doe on five occasions.

Jailers work for Clarke. The sheriff testified in a deposition in the case that he did not know how many of his employees, whether it was 20 or 200, were referred each year to the district attorney’s office for potential criminal charges.

The shackling issue arose during the course of pre-trial work by Jane Doe’s lawyers and the class action allegations were added to the original sexual assault lawsuit. Doe’s lawyers have said as many as 300 women could be part of the class.

Meanwhile, Thicklen’s lawyer, Lew Wasserman, has asked to withdraw from the case because he has not been paid and cannot find Thicklen.

“Mr. Thicklen has failed to communicate with counsel for over a year, indeed, counsel has been informed that even Mr. Thicklen’s family is unsure of where he is presently residing,” Wasserman said in his motion to withdraw. “Messages sent to Mr. Thicklen’s family do not result in any response by Mr. Thicklen. Moreover, counsel concludes that it is unlikely that Mr. Thicklen will voluntarily appear for trial.”

Lawyers for all the parties in the case wanted separate trials on the sexual assault and class action issues. The sexual assault claim and the shacking claims rely on different sets of facts and Thicklen, the correction officer, had nothing to do with shackling female inmates.

“Presentation of evidence of the other claim could confuse or prejudice the jury,” the lawyers said.

In addition, county lawyers want to ask an appeals court whether Thicklen was acting in the scope of his employment when allegedly conducting the assaults, and Jane Doe’s lawyers want more time to conduct discovery on the class action allegations.

Stadtmueller was having none of it.

“This matter is now almost three years old, and will be more than that by the time of trial …. If the parties have failed to use this extraordinarily extended period to conduct necessary discovery and motion briefing on the class issue, the problem is of their own making,” he wrote.

Gretchen Schuldt writes a blog for Wisconsin Justice Initiative, whose mission is “To improve the quality of justice in Wisconsin by educating the public about legal issues and encouraging civic engagement in and debate about the judicial system and its operation.”