                        NONPRECEDENTIAL DISPOSITION
                         To be cited only in accordance with
                                  Fed. R. App. P. 32.1




                United States Court of Appeals
                                 For the Seventh Circuit
                                 Chicago, Illinois 60604

                             Submitted November 26, 2013*
                               Decided December 5, 2013

                                          Before

                            WILLIAM J. BAUER, Circuit Judge

                            MICHAEL S. KANNE, Circuit Judge

                            DIANE S. SYKES, Circuit Judge

No. 13-1117

MARLETHA RANKINS,                                  Appeal from the United States District
    Plaintiff-Appellant,                           Court for the Eastern District of Wisconsin.

       v.                                          No. 2:11-cv-1153

COUNTY OF MILWAUKEE,                               J. P. Stadtmueller,
    Defendant-Appellee.                            Judge.

                                        ORDER

       While being detained at the Milwaukee County Jail, Marletha Rankins was
sexually assaulted by a correctional officer, James Howard. She brought suit under 42
U.S.C. § 1983 against Howard, individually, and the County of Milwaukee asserting
due process and Monell custom or policy claims, see Monell v. N.Y.C. Dep't of Soc. Servs.,



       *
        After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2)(C).
No. 13-1117                                                                          Page 2

436 U.S. 658, 690–91 (1978). Only the Monell claim is at issue in this appeal, and
particularly the district court’s pretrial ruling to grant the County’s motion in limine to
preclude any evidence of or reference to Howard’s purported sexual assault of another
inmate. The jury ultimately rejected the Monell claim. We affirm.

        On the early morning when Rankins was twice assaulted by Howard, all the
inmates at the jail were kept locked in their cells and only two correctional officers were
monitoring the 48 cells on the Rankins’s floor. Howard conducted cell inspections,
walking the floor and peering in the windows of cells to check on inmates; a second
officer staffed a central, floor-control panel. The second officer had access to video
monitoring, and was responsible for coordinating, among other things, release and
intake of inmates. But on the morning in question, that officer was not tracking
Howard’s activities, and Howard’s assaults of Rankins went undetected. The next
morning both Rankins and a second inmate, Shanika Thomas (who claimed also to have
been sexually assaulted by Howard the previous day about an hour before Rankins),
reported Howard’s actions to another officer at the jail. The County investigated and
fired Howard. He was also criminally prosecuted and convicted of sexually assaulting
Rankins—for which he is currently serving a prison sentence—but acquitted of
assaulting Thomas.

       Rankins sued Howard, individually, and the County for violating due process2
and Monell. With regard to the County, she argued that its failure to supervise its
correctional officers was the “moving force” behind the sexual assault. Specifically, she
contended that (1) the County should have installed a lighting system on the central,
floor-control panel to alert the officer operating that panel whenever a cell door was
opened, and (2) the officer at the floor-control panel should have been required to
monitor the inspecting officer’s movements through the cell block using the jail’s video
surveillance system. Had these policies been in place, Rankins maintained, the officer at
the floor-control panel would have seen Howard enter Rankins’s cell and could have
prevented the assault.

        Before trial the County filed a motion in limine, seeking to preclude any evidence
of or reference to the purported Thomas assault. The County urged that such evidence


       2
        As a pretrial detainee, Rankins was entitled by the due process clause of the
Fourteenth Amendment to at least as much protection from harm as afforded to
convicted criminals under the Eighth Amendment. See Belbachir v. Cnty. of McHenry,
726 F.3d 975, 979 (7th Cir. 2013).
No. 13-1117                                                                         Page 3

was irrelevant because, given his criminal conviction, Howard could not dispute
assaulting Rankins. Even if relevant, the County added, Thomas’s statements about the
assault were inadmissable hearsay (Rankins intended not to call Thomas as a witness,
but instead to rely on her statements in investigation reports). The district judge found
that Howard had sexually assaulted Rankins (taking that question from the jury) and
granted the County’s motion in limine, concluding that evidence concerning Thomas was
irrelevant to the remaining fact finding concerning the County’s liability.

       At trial both parties presented expert testimony about the feasibility of the
policies suggested by Rankins. The jury found no liability on the County’s part for
Howard’s actions.

       On appeal, Rankins first argues that the district court erred by granting the
County’s motion in limine and precluding any reference to or evidence of Howard’s
purported sexual assault of Thomas. That Howard also managed to sexually assault
another inmate on the same night he assaulted her, Rankins contends, underscores the
deficiencies of the County’s policies regarding the supervision of correctional officers.
According to Rankins, the Thomas evidence was relevant to show that Howard’s
violation of her constitutional rights was caused by the County’s decision not to install a
lighting system on the floor-control panel or to require the officer staffing that panel to
monitor the activities of the officer conducting cell inspections.

        But even if evidence concerning Howard’s purported sexual assault of Thomas (a
non-party, non-witness) is sufficiently relevant to pass the “low threshold” required by
Federal Rule of Evidence 401, see Tennard v. Dretke, 542 U.S. 274, 284–85 (2004), any error
by the district court here was harmless, see Jordan v. Binns, 712 F.3d 1123, 1126 (7th Cir.
2013); United States v. Johnson, 624 F.3d 815, 819–20 (7th Cir. 2010). As the County points
out, Thomas’s out-of-court statements would be inadmissable to prove that a sexual
assault occurred. See FED. R. EVID. 801(c), 802. Even if the reports containing Thomas’s
statements about her assault would be admissible as public records, each layer of
hearsay must be independently admissible and Rankins identifies no rule exempting
Thomas’s reported statements from the hearsay bar. See FED. R. EVID. 803(8), 805; Binns,
712 F.3d at 1133. And even if Rankins had identified such an exception, Thomas (like
Rankins) did not report her assault until the next morning, and thus her evidence would
not help Rankins establish that the County should have been aware of the risks posed
by its supervision policies and yet failed to act (as required for Rankins to succeed on a
Monell claim). See Smith v. Sangamon Cnty. Sheriff's Dep’t, 715 F.3d 188, 191–93 (7th Cir.
2013); Estate of Novack ex rel. Turbin v. Cnty. of Wood, 226 F.3d 525, 530 (7th Cir. 2000).
No. 13-1117                                                                           Page 4

       Rankins next poses several challenges to the sufficiency of the evidence
supporting the jury’s verdict in favor of the County. But because she did not file a
motion under Federal Rule of Civil Procedure 50 at trial, she waived her sufficiency
arguments on appeal. See Unitherm Food Sys. v. Swift–Eckrich, Inc., 546 U.S. 394, 401–02
(2006); Carlson v. Bukovic, 621 F.3d 610, 618 n.13 (7th Cir. 2010); Consumer Prods. Research
& Design, Inc. v. Jensen, 572 F.3d 436, 437–38 (7th Cir. 2009).

                                                                               AFFIRMED.
