concurring in part and dissenting in part.
I agree with the cogent analysis of the majority in holding that the actions of the deputy sheriffs were within the scope of their employment and concur in Section I of the panel opinion. I see no way to distinguish the acts of the deputy sheriffs here from those of the police officers involved in Bell v. City of Milwaukee, 536 F.Supp. 462 (E.D.Wis.1982), affd in part, rev’d in part, 746 F.2d 1205 (7th Cir.1984), and Cameron v. City of Milwaukee, 102 Wis.2d 448, 307 N.W.2d 164 (1981). In those cases, as here, the officers were acting for their own purposes but were doing, albeit very improperly, the type of thing which law enforcement personnel do. In Bell this court held that the city was required under section 895.46 to indemnify the officer for damages arising from the shooting and cover-up. 746 F.2d at 1271-72. In Cameron the Wisconsin Supreme Court held that the city was not entitled to summary judgment on the question whether the actions of the policemen were outside the scope of their employment because a finder of fact could reasonably conclude that the officers were acting within the scope of their employment. 102 Wis.2d at 459-60, 307 N.W.2d 164. It is also important to note that the Supreme Court of Wisconsin has recently affirmed a jury verdict that certain acts of an employee were within the scope of his employment where the acts were similar to those for which he had been hired and were made possible only by virtue of his role as employee, even though there was evidence the acts were done solely for the private purpose of the employee. State v. Beaudry, 123 Wis.2d 40, 365 N.W.2d 593 (1985). In addition, I do not believe it makes any difference whether the 1977 or 1983 version of the indemnity statute applies. The scope of employment language is the same in each, and the County is too deeply involved in the defense of this case to try at this point to wash its hands of the deputies’ actions that are within the scope of employment.
*1159However, I must dissent from parts of Sections II and III. I believe that the evidence of the sexual assault on Hibma while he was imprisoned in the Green Bay Reformatory should have been admitted. It was a matter for a properly instructed jury whether the defendant’s acts in “framing” Hibma were the proximate cause of the prison rapes. Presumably, the factors noted in Comment f of Section 452 of the Restatement (quoted by the majority ante at 1156) would form the basis of such an instruction.
I do not disagree with the majority that Hibma’s custody was transferred from the deputies to the Wisconsin prison system, which then had the primary responsibility for Hibma’s protection, and that the sexual assault in question was an intentional act. But it does not follow from these facts that sexual assault is a consequence of false imprisonment which can be kept from the jury on a superseding cause theory. The majority reasons that because an intentional act against which a third party has a duty to protect the original tort-feasor’s victim might be a superseding cause, the one before us is a superseding cause, and is such as a matter of law. This reasoning is quite fallacious. Indeed, on the majority’s theory, a policeman who beat an individual could never be liable for any injuries resulting from the malpractice of the physician to whom the victim had resorted for treatment of the injuries sustained in the beating. Of course, the duty to protect would have shifted from the policeman to the physician. Yet under both general tort concepts and § 1983 such a policeman could be liable for the injuries.
“Violence is unfortunately endemic to American prisons.” Murphy v. United States, 653 F.2d 637, 642 (D.C.Cir.1981); see also Martin v. White, 742 F.2d 469, 472-73 (8th Cir.1984). Gang rapes and homosexual assaults are common-place and frequent. As Justice Blackmun has written,
[a] youthful inmate can expect to be subjected to homosexual gang rape his first night in jail, or, it has been said, even in the van on the way to jail. Weaker inmates become the property of the stronger prisoners or gangs, who sell the sexual services of the victim. Prison officials either are disinterested in stopping abuse of prisoners by other prisoners or are incapable of doing so, given the limited resources society allocates to the prison system. Prison officials often are merely indifferent to serious health and safety needs of prisoners as well.
Even more appalling is the fact that guards frequently participate in the brutalization of inmates. The classic example is the beating or other punishment in retaliation for prisoner complaints or court actions.
United States v. Bailey, 444 U.S. 394, 421-22, 100 S.Ct. 624, 640, 62 L.Ed.2d 575 (1980) (Blackmun, J., dissenting) (footnotes omitted). Further, the number of § 1983 actions filed by prisoners alleging the failure of prison authorities to protect them from rape and assault is legion.
I believe, therefore, that it is a jury question whether homosexual rape is not such a routine and foreseeable part of this, and indeed of any, kind of prison experience— regardless of the vigilance of the prison guards — that the chain of causation was broken by a superseding cause. The authorities cited by the majority show, I believe, that it is a question of fact for the jury whether the deputies’ actions in this case were the proximate cause of the injuries suffered in prison by the plaintiff.
In § 1983 actions based on false imprisonment, the injury must be proximately related to the wrong. Johnson v. Greer, 477 F.2d 101, 105 (5th Cir.1973); Whirl v. Kern, 407 F.2d 781, 797 (5th Cir.1968), cert. denied, 396 U.S. 901, 90 S.Ct. 210, 24 L.Ed.2d 177 (1969). The statute does not add a qualification that only a defendant who is the immediate, direct and precipitating cause of the plaintiff’s injuries is liable to him. Redmond v. Baxley, 475 F.Supp. 1111, 1116 (E.D.Mich.1979). In defining proximate cause, the reasoning of the Fifth Circuit in Johnson v. Greer, on which the majority relies, is instructive.
*1160Neither of these [prior] cases, however, focused on the proper rule to be applied in determining whether the jury was proximately related to the wrong or a foreseeable consequence thereof. Thus, we look for guidance to “the prevailing view [of tort law] in this country” in determining the proper federal rule to apply to this case.
We focus our opinion not on the metaphysical “but for” sequence of events preceding Johnson’s injury but rather on the question of whether the principles of logic, fairness, and justice dictate the defendant should be held liable in a given situation. The cases are in accord that even a willful or intentional tort feasor does not become an insurer of the safety of those whom he has wronged. For example, if the [prison] had been destroyed by an earthquake, no one could rationally contend Greer should be liable for injuries befalling Johnson. On the other hand, the courts have generally held that where the acts of a defendant constitute an intentional tort or reckless misconduct, as distinguished from mere negligence, the aggravated nature of his action is a matter which should be taken into account in determining whether there is a sufficient relationship between the wrong and plaintiff’s harm to render the actor liable. Specifically, the factors to be taken into account are the tort feasor’s intention to commit a wrongful act, the degree of his moral wrong in so acting, and the seriousness of the harm intended. The touchstone for deciding the scope of the defendant’s liability in a false imprisonment action properly brought under a federal statute is the intent and object of the officer in detaining the plaintiff. While, as we have iterated, mere good intentions do not in themselves create a defense to the action, justice, fairness, and sound policy coalesce to indicate that an officer acting under color of law without malice or bad intent should be liable only for those injuries which an ordinarily prudent man would reasonably foresee would result from his actions. On the other hand, officers acting with malice or bad intent ought additionálly to be held responsible for those injuries which have a more attenuated causal relationship to their willful misconduct. Thus, in a false imprisonment action brought under Section 1983, the tort feasor acting under color of law with malice or bad intent must be held responsible for all injuries which could have been prevented by the exercise of the utmost caution characteristic of very careful men, though even he remains insulated from injuries caused by wholly unforeseen accidents occurring without his agency. Nor is he responsible for injuries against which no human care or foresight could guard and which are not caused in any degree by his gross neglect or intentional conduct.
The correct rule of law to be applied to this cause is indicated by analogy in the Restatement of Torts, Section 870.
A person who does any tortious act for the purpose of causing harm to another or to his things or to the pecuniary interest of another, is liable to the other for such harm if it results, except where the harm results from an outside force the risk of which is not increased by the defendant’s act. [Emphasis added.]
Comment “g” to that section amplifies this rule.
Even where the defendant’s act is in fact a cause of harm, in the sense that the harm would not otherwise have occurred, he is not liable to a person whom he intended to harm and who has been harmed, unless from the standpoint of a reasonable man, his act in some degree increased the risk of that harm.
Though this section of the Restatement deals expressly with the necessary causal relationship between an intentional wrong and a resulting intended injury, a fortiori the principle applies where, as here, an unintended injury results from an intentional tort.
*1161Johnson v. Greer, 477 F.2d at 106-07 (first emphasis added) (citations omitted).
No one contends that the deputies intended that Hibma be raped in prison, but their actions did obviously and substantially increase the risk of that harm. Therefore, it is a question of fact for the jury whether sexual assault is not a natural and probable consequence of being sent to prison for an extended period. See Wade v. Haynes, 663 F.2d 778 (8th Cir.1981), affd on other grounds, 461 U.S. 30, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983); Johnson v. Greer, supra. It is not, in my view, a consequence which can be excluded as a matter of law on a superseding cause theory. One who wrongfully sends another to prison may justly bear damages resulting from the uglier features of prison life.
I also disagree with the majority on the award of attorney’s fees. The plaintiff in a § 1983 action has a right to a jury trial. It was therefore an abuse of discretion for the district court to reduce the award because it would have taken only one day to justify an award of damages in a bench trial. Further, Sawyer County did not limit its defense to the issue of scope of employment, but contested the amount of damages for which the individual defendants would be liable whether or not the county was required to indemnify them. This defense benefited both the individual defendants and the county. For this reason, it was also an abuse of discretion to reduce the fee award on the ground that much of the plaintiff’s work would have been unnecessary but for the intervention of the county. The individual defendants accepted the benefit of the county’s intervention on their behalf. They should not be allowed to further profit on the theory that the plaintiff would have had an easier time if the county had not intervened. The proper issue is not who is presenting the defense, but on which claim the plaintiff is being forced to expend additional effort through action of the intervening defendant.
I therefore respectfully dissent as to the matters indicated.