Petition for Writ of Certiorari — Paul Nigl, Petitioner v. Jon Litscher, et al.

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IN THE

s

SUPREME COURT OF THE UNITED STATES 09:

PAUL NIGL and

SANDRA JOHNSTON,

Petitioners,

v.

JON LITSCHER, MICHAEL,

MEISNER, SARA HUNGERFORD,

and ZACHARY SCHROEDER,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

PETITIONERS’ PETITION FOR WRIT OF CERTIORARI

Paul M. Nigl, #280834

Fox Lake Correctional Inst.

W10237 Lake Emily Road

Post Office Box 200

Fox Lake, WI 53933-0200

Sandra K. Johnston

1370 Great Plains Dr. Apt. #2

Neenah, Wisconsin 54956

(920)505-0513

j ohnssk777@gmail. com

Pro se for Petitioner

Pro se for Petitioner

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TABLE OF CONTENTS

QUESTION PRESENTED

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LIST OF PARTIES

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OPINIONS BELOW

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JURISDICTION

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CONSTITUTIONAL PROVISIONS AND STATUTES

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STATEMENT OF CASE

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ARGUMENT

3

CONCLUSION

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INDEX TO APPENDICES

APPENDIX A

Decision of the United States Court of Appeals for the Seventh Circuit

APPENDIX B

Decision of the United States District Court for the Western District of Wi sconsin

APPENDIX C

Fraternization Policy Exception Request

APPENDIX D

DOC-21 AA Visitor Questionnaires

APPENDIX E

DOC email

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TABLE OF AUTHORITIES

Page

U.S. Cases

Beard v. Banks, 548 U.S. 521 (2006)

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Turner v. Sqfley, 482 U.S. 78 (1987)

passim

Zablocki v. Redhail, 434 U.S. 374 (1978)

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Federal Cases

Cochran v. Ballard, 2018 U.S. Dist. LEXIS 200289 (S.D. W.V. Nov. 9, 2018)

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Johnston v. Jess, 18-cv-882-bbc (W.D. Wis. Mar. 7, 2019)

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Martin v. Snyder, 329 F.3d 919 (7th Cir. 2003)

7

Nigl v. Litscher, No. 19-cv-105-bbc (W.D. Wis. Mar. 27, 2019) denied on exhaustion grounds

2019 WL 6909587 (W.D. Wis. Dec. 19; 2019) appeal filed Nigl v. Meisner, et al., No. 19-3523,

(7th Cir. (Wis.) Dec. 27, 2019)

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Nigl v. Litscher, 940 F.3d 329 (7th Cir. 2019)

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Nigl v. Litscher, 378 F.Supp.3d 729 (E.D. Wis. Mar. 29, 2019)

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Riker v. Lemmon, 798 F.3d 546 (7th Cir. 2015).........................

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Simpson v. Nickel, 450 F.3d 303 (7th Cir. 2006)........................

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Waters v. Gaston County, 57 F.3d 422 (4th Cir. 1995)..............

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Wolford v. Angelone, 38 F.Supp.2d 452 (W.D. Va. 1999)

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State Cases

State v. DeLain, 2005 WI 52

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Federal Statutes

28 U.S.C. § 1254(1)

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28 U.S.C. § 2101(c),

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42 U.S.C. § 1983....

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State Statutes

Wis. Admin. Code § PSY 1.02(3)...................

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Wis. Admin. Code §§ PSY 5.01(14)(a) and (b)

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Other

Fourteenth Amendment

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QUESTION PRESENTED

1.

Whether prison officials may, consistent with the Fourteenth Amendment,

prohibit a former prison employee and a prisoner from marrying where prison officials’

summary judgment material: (a) argues that the first Turner v. Safley, 482 U.S. 78 (1987), factor

standing alone is sufficient to support their decision to prohibit petitioners’ right to marry; and

(b) fails to present credible evidence sufficient to demonstrate that petitioners are flagrant rule

violators.

LIST OF PARTIES

All parties appear in the caption of the case on the cover page.

Petitioners, who were appellants below, are Paul Nigl and Sandra Johnston. Counsel for

petitioners was Mark G. Weinberg, 3612 N. Tripp Avenue, Chicago, Illinois 60641; and Adele

D. Nicholas, 4510 N. Paulina St. 3E, Chicago, Illinois 60630.

Respondents, who were appellees below, are Jon Litscher, Michael Meisner, Sara

Hungerford, and Zachary Schroeder, in their individual and official capacities. Counsel for

respondents was Steven C. Kilpatrick, Assistant Attorney General, Wisconsin Department of

Justice, Post Office Box 7857, Madison, Wisconsin 53707-7857.

OPINIONS BELOW

The opinion and order of the United States Court of Appeals for the Seventh Circuit is

reported as Nigl v. Litscher, 940 F.3d 329 (7th Cir., (Wis.) Oct. 7, 2019), rehearing and rehearing

en banc denied (Nov. 21, 2019); appear in Appendix A attached hereto.

The order of the United States District Court for the Eastern District of Wisconsin,

Milwaukee Division; is reported as Nigl v. Litscher, 378 F.Supp.3d 729 (E.D. Wis. Mar. 29,

2019); it appears in Appendix B attached hereto.

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JURISDICTION

The opinion and judgment of the United States Court of Appeals for the Seventh Circuit

affirming the District Court decision declaring the respondents application of its regulations

concerning marriage constitutional pursuant to 42 U.S.C. § 1983. Pursuant to 28 U.S.C. §

2101(c), the present petition for a writ of certiorari was required to be filed, within ninety (90)

days of the entry of the judgment, on or before February 17, 2020. The jurisdiction of the Court

is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS AND STATUTES

The Fourteenth Amendment to the United States Constitution provides as follows: “No

State shall make or enforce any law which shall abridge the privileges or immunities of citizens

of the United States; nor shall any State deprive any person of life, liberty, or property, without

due process of law; nor deny to any person within its jurisdiction the equal protection of the

laws.”

Title 42 U.S.C. § 1983, provides as follows: "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 an action at law, suit in equity,

or other proper proceeding for redress, except that in any action brought against a judicial officer

for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be

granted unless a declaratory decree was violated or declaratory relief was unavailable. For the

purpose of this section, any Act of Congress applicable exclusively to the District of Columbia

shall be considered to be a statute of the District of Columbia.”

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STATEMENT OF CASE

The petitioners initiated this lawsuit by filing a complaint for declaratory and injunctive

relief, as well as damages in the Eastern District of Wisconsin. At summary judgment, the

District Court, the Honorable JP Stadtmueller presiding, held that Respondents’ decision to deny

Petitioners’ request to marry was reasonably related to a legitimate penological interest. 1

Notice of Appeal was filed by the petitioners and briefs were submitted to the Appeals

Court of the Seventh Circuit. The respondents did not seek to appeal any portion of the decision

of the District Court.

On appeal, in an opinion filed October 7, 2019, the United States Court of Appeals for

the Seventh Circuit affirmed the District Court’s order finding that the denial was reasonably

related to legitimate penological interests as petitioners were engaged in a pattern of rule­

breaking and deception up to and through the date of the marriage request.

ARGUMENT

The real task in this case is not balancing the Turner factors but determining whether the

respondent’s summary judgment material shows not just a logical relation but a reasonable one.

The first rationale posited by respondents in support of the prohibition on marriage is

prison security. Security is undoubtedly a legitimate penological interest. However, petitioners

will argue that reasonable minds could differ as to the import of the evidence introduced thus far

concerning the relationship between the application of the marriage regulation and. the

defendants’ posited security interests. It is the petitioners’ position that they have marshaled

substantial evidence that, given the importance of the right to marry, the particular application of

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Significantly, the district court correctly recognized that the Defendants do not argue that

any Turner factors other than the first one support their decision to prohibit petitioners from

marrying; nor could they reasonably justify the marriage denial with reference to the remaining

factors. See ECF No. 79 at 12 fn.4; Exhibit B.

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the marriage regulation is not a reasonable one. Indeed, it is not inconceivable that petitioners’

counsel, through the presentation of physical evidence and rigorous questioning of prison

officials, could demonstrate genuine issues of material fact at trial for which a reasonable jury

could render a verdict in the petitioners favor. For instance, a reasonable jury could conclude that

when Petitioner Johnston was rehired by DOC at its central office she complied with written

DOC policies and procedures by following Executive Directive 16 and submitted a fraternization

policy exception request to her immediate supervisor. See DOC-2270 Fraternization Policy

Exception Request; it appears in Appendix C attached hereto.

Second, on form DOC-2270, in the section titled “NATURE OF EMPLOYEE

RELATIONSHIP

TO

OFFENDER”

it

provides:

“OTHER

CLEARLY

DEFINE

RELATIONSHIP (explain how you met, the length of the relationship, and the purpose of your

relationship).” Here, Petitioner Johnston used her common sense to interpret the question asked

of her and checked the box marked “OTHER,” and wrote “MET AT WCI APPROXIMATELY

04/13. RELATIONSHIP

PROFESSIONAL.” Further, on that same form in the section titled

“CHECK ALL OF THE FOLLOWING THAT WOULD APPLY REGARDING YOUR

PROPOSED RELATIONSHIP,” Petitioner Johnston checked the box marked “[hjaving personal

contacts ... such as ... being in a social or physical relationship ....” See Appendix C.

Relatedly, any allegation that Petitioner Johnston continued to break rules up to and

through the marriage request by writing that she was Nigl’s “friend” on the visitor questionnaire

is the epitome of an exaggerated response to which courts owe no deference. Indeed, on the

visitor form in the section titled “WHAT RELATIONSHIP ARE YOU TO THE OFFENDER BE SPECIFIC,” it provides: “(e.g. Father, Mother, Brother, Sister, Stepfather, Stepmother,

Spouse, Friend).” See DOC-21AA Visitor Questionnaires; they appear in Appendix D attached

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hereto. Here, Johnston is not Nigl’s Mother, Sister, Stepmother, or Spouse; however, she is

Nigl’s “Friend.” Significantly, respondents have not introduced evidence that a proposed visitor

must disclose that they are in a romantic relationship on a visitor questionnaire. A reasonable

jury could conclude both that Petitioner Johnston was not being deceptive in furtherance of

petitioners’ relationship when she identified herself as a “friend” on the visitation forms and that

she did not “misrepresent” how and when she met Nigl, or the nature of that particular

relationship; that is, Petitioner Johnston honestly answered that she met Nigl at WCI in April of

2014 in her official capacity.

Third, a reasonable jury could conclude that any phone calls/letters/photos (some of

which were sent under the alias “Cassie Fox” or “Cass”), were unable to be connected to the time

frames when Johnston was employed by DOC. See DOC email; it appears in Appendix E

attached hereto. Moreover, defendants did not introduce any evidence that the Department

prohibits a private citizen from establishing a phone account under an alias or using one when

communicating with an inmate. Prison officials must support their justification with some

evidence, not speculation. Here, petitioners did not concede that use of an alias when

communicating with an inmate is prohibited. To the contrary, petitioners disputed that there even

is such a policy.

Turning to the Psychology Examining Board’s findings that Petitioner Johnston violated

rules aimed to protect psychologists’ clients; the panel’s decision suggests the Board’s findings

are conclusive against Johnston, if s not. See Simpson v. Nickel, 450 F.3d 303, 306 (7th Cir.

2006)(“Wisconsin's judiciary does not treat the factual conclusions of prison disciplinary boards

(or any other state agency) as beyond the power of a court to examine.”). Here, a reasonable jury

could conclude that Nigl was not Johnston’s “client” within the meaning of the Wis. Admin.

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Code §§ PSY 5.01(14)(a) and (b). See Wis. Admin. Code § PSY 1.02(3)(“’Client’ means the

individual ... for whom the licensee of the board provides professional services.”); see also State

v. DeLain, 2005 WI 52 (totality of the circumstances determines whether there was an ongoing

therapist-patient relationship). Indeed, the defendants have failed to introduce evidence that

Johnston provided Nigl with psychotherapy.

Finally, a reasonable jury could conclude that prison officials filed false disciplinary

charges against petitioners. See Nigl v. Litscher, No. 19-cv-105-bbc (W.D. Wis. Mar. 27,

2019)(granting leave to proceed on the claim that DOC defendants issued or approved false

conduct reports against Nigl because he started and maintained a relationship with a former

correctional employee), denied on exhaustion grounds, 2019 WL 6909587 (W.D. Wis. Dec. 19,

2019), appeal filed, (Dec. 27, 2019) Nigl v. Meisner, et ah, (No. 19-3523); see also Johnston v. 1

Jess, 18-cv-882-bbc (W.D. Wis. Mar. 7, 2019)(granting leave to proceed on the claims that DOC

and DSPS defendants took action that led to the suspension of Johnston’s license without

following due process and interfering with her right to intimate association).

The second rationale posited by respondents in support of the prohibition on marriage is

rehabilitation. Rehabilitation is also undoubtedly a legitimate penological interest. However, the

particular theory of rehabilitation at issue in this case presents a special set of concerns for courts

considering whether the application of a prison regulation is consistent with the Fourteenth

Amendment. Specifically, respondent advances a deprivation theory of rehabilitation: “Inmates

are in prison because they failed to follow the law. An important component of an inmate’s

rehabilitation is learning how to follow rules. If an inmate is rewarded for breaking rules, the

Department fails in its mission to rehabilitate the offenders they serve.” See ECF No. 57

Declaration of Sara Hungerford.

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First, Petitioners will argue this justification has no limiting principle; if sufficient, it

would provide a “rational basis” for the application of any regulation that deprives a prisoner of a

constitutional right so long as there is at least a theoretical possibility that the prisoner can regain

the right at some future time by modifying his behavior. Cf. Beard v. Banks, 548 U.S. 521, 546

(2006). Moreover, the right to marry extends not only to the virtuous. Turner itself invalidated a

regulation prohibiting, inter alia, inmate-to-inmate marriages, see id., 482 U.S. at 97, and the

very notion of prisoner marriage naturally entails at least one party that has not conformed himor herself to societal norms. Cf. Zablocki v. Redhail, 434 U.S. 374, 388-90 (1978)(upholding the

fundamental right to marry as applied to persons who had failed to meet child support

obligations).

■ Second, Petitioners will argue that the deprivation theory advanced does not map easily

onto several of the Turner factors. For instance, under the deprivation theory of rehabilitation,

there could never be a “ready alternative” for furthering the government interest, because the

government interest is tied directly to depriving the prisoner of the right to marry. Beard, 548

U.S. at 547. Indeed, the strong form of the deprivation theory of rehabilitation would mean that

the prison rule that this Court invalidated in Turner would have survived constitutional scrutiny

if prison officials had simply posited an interest in rehabilitating prisoners through deprivation.

Ibid.

Finally, petitioners will argue that, at present, there is confusion concerning permissible

denials on inmate marriages which needs to be resolved to prevent recurrence. Cf. Martin v.

Snyder, 329 F.3d 919, 922 (7th Cir. 2Q03)(“Turner does not say that every delay violates the

Constitution.”); but see Riker v. Lemmon, 798 F.3d 546 (7th Cir. 2015)(upholding the right to

marry a former rule breaking inmate and DOC employee); see also Cochran v. Ballard, 2018

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U.S. Dist. LEXIS 200289 (S.D. W.V. Nov. 9, 2018)(allowing inmate to marry a former rule

breaking DOC employee); Wolford v. Angelone, 38 F.Supp.2d 452, 461-62 (W.D. Va.

1999)(finding that policy would not be justified if it had the actual effect of prohibiting marriage

between a former rule breaking DOC employee and an inmate); Waters v. Gaston County, 57

F.3d 422, 425 (4th Cir. 1995)(“not every restriction on the right to marry violate[s] the

Constitution; rather ‘regulations that do not significantly interfere with decisions to enter into the

marital relationship may legitimately be imposed.”’)(quoting Zablocki, 434 U.S. at 386-87).

CONCLUSION

For the reasons above, a writ of certiorari should issue to review the judgment and

opinion of the Seventh Circuit Court of Appeals.

Dated this /7~ day of January, 2020.

Respectfully submitted,

Paul M. Nigl, #28083

Fox Lake Corr. Inst.

W10237 Lake Emily Road

Post Office Box 200

Fox Lake, WI 53933-0200

Sandra K. Johnstory

1370 Great Plains Dr., Apt. #2

Neenah, WI 54956

(920) 505-0513

j ohnssk777@gmail .com

Pro se for Petitioner

Pro se for Petitioner

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