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

Supreme Court briefFeb 16, 2020

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

Marriage and Cohabitation

#=» Civil status or condition

940 F.3d 329

United States Court of Appeals, Seventh Circuit.

Prisoners retain, under Fourteenth Amendment,

constitutional right to marry, which like many

other rights, is subject to substantial restrictions

as result of incarceration. U.S. Const. Amend. 14.

Paul NIGL, et al., Plaintiffs-Appellants,

Jon LITSCHER, et al., Defendants-Appellees.

No. 19-1618

13]

Argued September 17, 2019

Prisons

Regulation and supervision in general; role

of courts

Prison policy decision that impinges on inmate’s

constitutional rights does not violate Constitution

if decision is reasonably related to legitimate

penological interests.

Decided October 7, 2019

Rehearing and Rehearing En

Banc Denied November 21, 2019

Synopsis

[4]

Background: State inmate and his . former prison

psychologist filed § 1983 action alleging that prison officials'

denial of inmate's request to marry psychologist violated

their fundamental right to marry. The United States District

Court for the Eastern District of Wisconsin, No. 17-cv-925,

J. P. Stadtmueller, J., 378 F.Supp.3d 729, entered summary

judgment in officials' favor, and plaintiffs appealed.

In determining whether prison policy decision

that impinges on inmate’s constitutional right

is reasonably related to legitimate penological

interests, court should consider: (1) whether there

was rational connection between decision and

legitimate penological interest put forward to

justify denial; (2) whether alternative means of

exercising right remained open to inmate; (3)

what impact accommodation of asserted right

would have on guards and other inmates; and

(4) whether obvious, easy alternatives existed to

accommodate inmate’s rights at de minimis cost

to valid penological interests, tending to show

that denial was exaggerated response to prison

concerns.

[Holding:] The Court of Appeals, Flaum, Circuit Judge, held

that denial of inmate's request did not violate his right to

marry.

Affirmed.

On AppealMotion for Summary Judgment

West Headnotes (7)

[1]

Federal Courts

#= Summary judgment

[5]

Federal Courts

Summary judgment

Constitutional Law

«=» Family and family law in general

Prisons

#=» Judicial supervision, intervention, or review

Courts must give substantial deference to

professional judgment of prison administrators,

who bear significant responsibility for defining

legitimate goals of corrections system and

for determining most appropriate means to

accomplish them.

Court of Appeals reviews de novo district court’s

entry of summary judgment and consider record

in light most favorable to party against whom

summary judgment was entered.

[2]

Prisons

Regulation and supervision in general; role

of courts

Appendix A

[6]

Prisons

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

,,*■

#= Regulation and supervision in general; role

of courts

Although burden of persuasion is on prisoner

to disprove regulation's validity, prison officials

must still articulate their legitimate governmental

interest in regulation and provide some evidence

supporting their concern.

[7]

Marriage and Cohabitation

Civil status or condition

Prisons

#=> Particular rights and disabilities

State prison officials' denial of inmate's request

to marry his former prison psychologist was

rationally related to their interests in maintaining

secure prison capable of effectively monitoring

inmate contacts and in promoting respect for

its rules and, thus, did not violate inmate's

right to marry, where inmate and psychologist

had engaged in pattern of rule-breaking and

deception in furtherance of their relationship up

to and through date of marriage request, and

psychologist violated professional rules designed

to protect psychologists’ clients and patients.

*330 Appeal from the United States District Court for

the Eastern District of Wisconsin. No. 17-cv-925 — J. P.

Stadtmueller, Judge.

Attorneys and Law Firms

Mark G. Weinberg, Attorney, LAW OFFICE OF MARK

G. WEINBERG, Chicago, IL, Adele D. Nicholas, Attorney,

LAW OFFICE OF ADELE D. NICHOLAS, Chicago, IL, for

Plaintiffs - Appellants.

Steven C. Kilpatrick, Attorney, OFFICE OF THE

ATTORNEY GENERAL, Wisconsin Department of Justice,

Madison, WI, for Defendants - Appellees.

Before Flaum, Rovner, and Scudder, Circuit Judges.

Opinion

Flaum, Circuit Judge.

Wisconsin Department of Corrections officials denied inmate

Paul Nigl’s request to marry his former prison psychologist,

Dr. Sandra Johnston. Nigl and Johnston filed suit, arguing

that the denial violates their fundamental right to marry.

The denial, however, was reasonably related to legitimate

penological interests. Nigl and Johnston had. engaged in a

pattern of rule-breaking and deception in furtherance of their

relationship leading up to the date of the marriage request, and

the Psychology Examining Board concluded that Johnston

had violated rules designed to protect patients in connection

with her relationship with Nigl. The defendants also represent

that the decision to deny the marriage request in January

2017 is not tantamount to a permanent denial. We therefore

affirm the district court’s entry of summary judgment for the

defendants.

I. Background

Since 2001, plaintiff-appellant John Nigl has been a

prisoner within the Wisconsin Department of Corrections

(“Department”), where he is currently serving a 100-year

bifurcated sentence for two counts of intoxicated homicide by

use of a vehicle. From 2001 until September 2015, Nigl was

incarcerated at Waupun Correction Institution (“Waupon”).

Plaintiff-appellant Dr. Sandra Johnston worked at Waupon as

a prison psychologist from April 2013 until January 2015,

during which time she provided psychological services to

Nigl and had numerous contacts with him. On Johnston’s last

day of work at Waupon, Nigl kissed her. I

After Johnston’s last day at Waupon, Nigl asked his brother to

find Johnston’s contact information. Johnston and Nigl then

began communicating regularly by mail, email, and phone

and became engaged in April 2015.

Johnston returned to employment with the Department

as a psychologist in the Department’s central office in

July 2015. On her first day of work, she submitted

a “fraternization policy exception request” form to her

supervisor, requesting permission to have contact with

Nigl. Where the form asks for the “Nature of Employee

Relationship to Offender,” Johnston checked the box

marked “other” and wrote “Met at [Waupon] approximately

04/13. Relationship [is] professional.” Johnston did not

disclose that she was engaged to Nigl or that she was

otherwise in a romantic relationship with him. Johnston’s

supervisor never processed the fraternization *331 policy

exception request, but Nigl and Johnston continued to have

contact anyway. Because Johnston’s fraternization request

Appendix A

VWESTLAW (?) 2020 Thomson Reuters. Mo claim to original U.S. Government Works.

NigI v. Litseher, 940 F.3d 329 (2019)

had not been approved, those contacts were a violation

of the Department’s fraternization policy, which prohibits

Department employees from having “personal contacts ...

[and] knowingly forming close relationships” with inmates.

The Department’s fraternization policy “is designed to

eliminate any potential conflict of interest or impairment

of the supervision and rehabilitation” that Department

employees provide inmates.

Around the same time that Nigl was transferred to Redgranite

Correctional Institution (“Redgranite”) in September 2015,

the Department learned about Johnston’s relationship with

Nigl. The Department then terminated Johnston in October

2015 for violations of the Department’s fraternization policy.

A month after Johnston was terminated, she requested to visit

Nigl. She disclosed on the visitation request form that she was

Nigl’s “friend” but did not disclose any romantic relationship

with Nigl. Johnston noted that the details of how they met

were confidential under the Health Insurance Portability and

Accountability Act. Department personnel denied Johnston’s

request pursuant to Wis. Admin. Code § DOC 309.08(4)(j)

because she had been an employee of the Department less

than twelve months earlier.

In ensuing investigations of Johnston’s conduct, Redgranite

staff found cards, letters, and photographs from Johnston in

Nigl’s cell, some of which were sent under the alias “Cassie

Fox” or “Cass.” Some of the photographs depicted Johnston

in various stages of undress and in sexually suggestive poses.

The parties dispute whether Johnston sent Nigl these items

while employed by the Department. Defendant-appellee

Michael Meisner, warden of Redgranite, testified that if

Johnston sent the items while employed by the Department,

then those items would be considered contraband.

Johnston had also set up an account with the prison’s phone

system under the name Cassie Fox and engaged in phone

sex with Nigl. The Department prohibits using an alias

when communicating with an inmate because it thwarts the

effective monitoring of inmate communications. Meisner

believed that Johnston used the alias to conceal her identity

as a former Department employee and to thwart the security

protocol of the institution.

The Department reported Johnston’s relationship with Nigl to

the Psychology Examining Board (the “Board”). The Board

concluded that Johnston, in furtherance of her relationship

with Nigl, had violated Wis. Admin. Code §§ Psy 5.01(14)

(a) and (b), which prohibit licensed psychologists from

“[e]ngaging in sexual contact, sexual conduct, kissing, or

any other behavior which could reasonably be construed as

seductive, romantic, harassing, or exploitative” with a client

or former client within two years of the end of professional

services. The Board’s rules aim to “protect the health, safety

or welfare of clients or patients.” Bar-Av v. Psychology

Examining Bd., 299 Wis.2d 387,728 N.W.2d 722,728 (2007).

As a result of the Board’s findings, it entered an order in

August 2016 suspending Johnston’s license for one year and

limiting her license to practice.

In November 2016, Johnston submitted another request to

visit Nigl. She again indicated that she was Nigl’s friend

but did not disclose a romantic relationship with him.

Department personnel also denied that request because,

among other reasons, she had shown a willingness to violate

rules by communicating with Nigl outside of her professional

relationship.

*332 In December 2016, Nigl requested permission to marry

Johnston. Under the Department’s policies and procedures,

an inmate could submit a request to marry if the following

conditions were met:

A. The marriage does not pose a threat to the security of

the facility or a threat to the safety of the public;

B. There are no legal impediments to the marriage;

C. The inmate is not scheduled for release within nine

months;

D. The proposed spouse or the proposed spouse’s children

are not victims of the inmate;

E. The proposed spouse has never been convicted in any

criminal activity with the inmate; and

F. The proposed spouse has been on the inmate’s visiting

, list for a minimum of one year or is able to demonstrate

a longstanding relationship with the proposed spouse.

The decision to approve or deny the request falls within the

warden’s discretion. The parties agree that the Department

could accommodate a brief ceremony without compromising

prison security or placing undue strain on prison resources.

Defendant-appellee Sara Hungerford, who was a social

worker at Redgranite at the time, received and reviewed the

marriage request. Hungerford conferred with her supervisor

defendant-appellee Zachary Schroeder and recommended

denial of the request to marry because

Appendix A

Nigi v, Litscher, 940 F.3d 329 (2019)

there are reasonable grounds to believe

the marriage poses a threat to the

security of the facility or a threat to the

safety of the public, or threatens other

legitimate penological interests ... [and

the] proposed spouse has not been

on the visiting list for at least one

year and is not able to demonstrate a

longstanding relationship.

Schroeder and Meisner agreed with Hungerford’s

recommendation because of Johnston and Nigl’s violations

of Department rules in furtherance of their relationship;

Johnston’s violations of the code of professional conduct

for psychologists and, relatedly, Meisner’s concern that

Johnston may have victimized Nigl; Meisner’s belief that the

relationship was grounded in deception and rule-breaking;

Nigl and Johnston’s failure to demonstrate a longstanding

relationship; and the threat the marriage would pose to

the security of the facility and other penological interests.

Meisner made the final decision to deny Nigl’s request to

marry Johnston in January 2017.

Nigl submitted two inmate grievances about the marriage

denial in early 2017. The inmate complaint examiner

recommended denial of the grievances, finding that the staff

acted in accordance with Department policy. Nigl appealed

the denials of his grievances, and those appeals were also

denied. Jon Litscher was the Department Secretary and

final decision-maker on internal inmate grievances at the

time the grievances and appeals were denied. Defendantappellee Kevin Carr is the current Department Secretary and

is substituted for former Secretary Litscher pursuant to Fed.

R. App. P. 43(c)(2).

In June 2017, Johnston submitted a third visitation request,

again stating that Nigl was a “friend” but declining to

disclose their romantic relationship. The request was denied

for reasons similar to the reasons the previous visitation

requests were denied. Since June 2018, Nigl has been housed

at Fox Lake Correctional Institution (“Fox Lake”).

Nigl and Johnston filed suit under 42 U.S.C. § 1983 based on

the denials of the marriage and visitation requests. The parties

filed cross-motions for summary judgment, and the district

court granted the *333 defendants’ motion, dismissing all

claims as to all parties. The district court concluded that the

denial of the marriage request was “reasonably related to [the

defendants’] goal of ensuring a secure prison where staff and

inmates respect the rules.” The plaintiffs appeal the district

court’s judgment only as to the denial of the marriage request.

The plaintiffs argue that the district court misapplied the fourfactor test the Supreme Court set forth in Turner v. Sqfley,

482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) when

evaluating the plaintiffs’ right to marry claim because it relied

solely on the first factor and ignored the others. The plaintiffs

also argue that the district court’s decision conflicts with

this Court’s precedent in Riker v. Lemmon, 798 F.3d 546

(7th Cir. 2015), a case where we held that the defendants

had not adequately justified their denial of an inmate’s

marriage request. The defendants respond that the district

court correctly concluded that the denial of the marriage

request was reasonably related to legitimate penological

interests in institutional security and inmate rehabilitation.

II. Discussion

[1] We review de novo the district court’s entry of summary

judgment and consider the record in the light most favorable

to the plaintiffs, the party against whom summary judgment

was entered here. Pagel v. TIN Inc., 695 F.3d 622, 624 (7th

Cir. 2012). The district court’s entry of summary judgment

for the defendants was proper only if no material issue of fact

exists that would allow a jury to find in favor of the plaintiffs.

Adeyeye v. Heartland Sweeteners, LLC, 721 F.3d 444, 449

(7th Cir. 2013).

A. Prisoners’ Right to Marry

[4] Prisoners retain, under the Fourteenth

[2]

[3]

Amendment, a constitutional right to marry, which “like many

other rights, is subject to substantial restrictions as a result

of incarceration.” Turner v. Sqfley, 482 U.S. 78, 95, 107

S.Ct. 2254, 96 L.Ed.2d 64 (1987). A prison policy decision

that impinges on an inmate’s constitutional rights does not

violate the Constitution if the decision “is reasonably related

to legitimate penological interests.” Id. at 89, 107 S.Ct. 2254;

see also Siddiqi v. Leak, 880 F.2d 904, 909 (7th Cir. 1989)

{Turner test applies to prison policy decisions as well as

prison regulations). The Supreme Court has set forth four

factors for the Court to consider in making this determination:

(1) whether there was a rational connection between the

decision to deny the marriage request and the legitimate

penological interest put forward to justify the denial;

Appendix A

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

(2) whether alternative means of exercising the right

remained open to the plaintiffs;

(3) what impact accommodation of the asserted right would

have on guards and other inmates; and

(4) whether obvious, easy alternatives existed to

accommodate the plaintiffs’ rights at de minimis cost

to valid penological interests, tending to show that the

denial was an exaggerated response to prison concerns.

violation of Department rules; Johnston using an alias to

communicate with Nigl; Johnston continuing to have contact

with Nigl even though her fraternization policy exception

request had not been approved; Johnston misrepresenting her

relationship as merely “professional” and stating that she was

only a “friend” of Nigl on fraternization policy exception and

visitation forms; and Johnston having violated professional

rules meant to protect clients or patients like Nigl by engaging

in seductive, romantic, or exploitative conduct with him.

The plaintiffs’ pattern of rule-breaking and deception in

furtherance of their relationship continued up to and through

Turner, 482 U.S. at 89-91, 107 S.Ct. 2254. The defendants

the

date of the marriage request. As recently as one month

argue that the case can be disposed of under the first factor

before the marriage request, Johnston falsely identified

whereas *334 the plaintiffs argue that the Court must

herself as merely Nigl’s “friend,” and she again identified

consider the first and fourth factors. Although “the first

herself as merely a friend on a visitation request form

one can act as a threshold factor regardless of which way it

after Nigl submitted the marriage request. Considering

cuts,” Riker v. Lemmon, 798 F.3d 546, 553 (7th Cir. 2015)

these continued failures to disclose the true nature of their

(citation omitted), the ultimate question remains whether

relationship in the context of the previous uses of an alias

the defendants’ decision to deny the marriage request was

and other forms of deception, the defendants could have

reasonably related to legitimate penological interests, Turner,

reasonably concluded that the couple’s pattern of rule

482 U,S. at 89, 107 S.Ct. 2254.

breaking and deception was ongoing through the time of the

[6] Courts must give “substantial deference to the marriage request.

[5]

professional judgment of prison administrators, who bear a

[7] Taking steps to prevent this kind of conduct from

significant responsibility for defining the legitimate goals

recurring in the future is rationally related to the defendants’

of a corrections system and for determining the most

interests in maintaining a secure prison capable *335 of

appropriate means to accomplish them.” Van den Bosch

effectively monitoring inmate contacts and in promoting

v. Raemisch, 658 F.3d 778, 786 (7th Cir. 2011) (quoting

respect for its rules. Requiring the defendants to grant the

Overton v. Bazzetta, 539 U.S. 126, 132, 123 S.Ct. 2162,

plaintiffs’ marriage request at a time when the plaintiffs were

156 L.Ed.2d 162 (2003)). The defendants cannot, however,

engaged in an ongoing pattern of rule-breaking and deception

“avoid court scrutiny by reflexive, rote assertions.” Riker,

in furtherance of their relationship would eliminate or reduce

798 F.3d at 553 (Citation omitted). “Although the burden of

the “sting” from the Department’s sanction for the plaintiffs’

persuasion is on the prisoner to disprove the validity of a

misconduct. Cf. Martin v. Snyder, 329 F.3d 919, 922 (7th

regulation, prison officials must still articulate their legitimate

Cir. 2003) (“Restrictions on visitation, though not enough to

governmental interest in the regulation and provide some

justify prohibiting marriage, may well justify deferment, so

evidence supporting their concern.” Id. (citation and internal

that the sanction for misconduct will have some sting.”).

quotation marks omitted).

B. Denial of Plaintiffs’ Marriage Request

The defendants’ denial of the plaintiffs’ one-time marriage

request in January 2017 was reasonably related to their

legitimate penological interests in preserving the security

of the prison, inducing compliance with and promoting

respect for the prison’s rules governing inmate contacts, and

rehabilitating Nigl. The defendants have pointed to several

instances of misconduct by Johnston and Nigl in furtherance

of their relationship: Johnston and Nigl kissing on Johnston’s

last day at Waupon (a fact that Johnston now denies); Johnston

and Nigl developing and continuing their relationship in

Moreover, sanctioning the plaintiffs for misconduct to

promote respect for the prison’s rules was not the only reason

for denying the marriage request. The defendants also denied

the request because of Meisner’s concern that Johnston, given

her position of authority over Nigl, may have been exploiting

or otherwise victimizing Nigl. That concern is supported

by the Psychology Examining Board’s finding, published

just four months before the marriage request, that Johnston

violated rules designed to protect psychologists’ clients and

patients.4 The denial of the marriage request was therefore

rationally related to the defendants’ goal of protecting Nigl

Appendix A

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

from the same exploitation that those rules were designed to

prevent.

At the time of the marriage request, Johnston was already

not permitted to visit Nigl. The plaintiffs assert that the

defendants still could have segregated Nigl or restricted

his phone privileges as punishment for the rule violations

instead of denying the marriage request. The Turner test,

however, is not a least restrictive alternative test, 482 U.S.

at 90, 107 S.Ct. 2254, and the defendants are entitled to

“substantial deference” in determining the most effective

means to accomplish their legitimate penological goals,

Overton, 539 U.S. at 132, 123 S.Ct. 2162. The plaintiffs

have not made any showing that either one of their proposed

alternative means was “obvious [and] easy,” Turner, 482 U.S.

at 90, 107 S.Ct. 2254, or could have been substituted at only

de minimis cost to the defendants’ pursuit of their legitimate

penological goals, id. at 90-91, 107 S.Ct. 2254; see also

Overton, 539 U.S. at 132, 123 S.Ct. 2162 (prisoners bear

burden to prove invalidity of prison regulations).

The plaintiffs rely heavily on our decision in Riker, but

the marriage request issue in that case was decided based

on a “fundamental infirmity” that does not exist here. 798

F.3d at 556. The fundamental infirmity, we explained, was

that the justification the defendants offered for denying the

marriage request was “premised entirely on its ex-employee

visitation policy and the security justifications that support

that policy.” Id. at 556 & n.28 (explaining that the Department

“fundamentally misconceivefd] the issue before the court”

by resting justifications for the denial of the marriage

request on reasons for denying visitation privileges). Here,

the defendants have articulated reasons for the denial of

the marriage request that exist independently of concerns

surrounding visitation.

It is worth clarifying that before this Court is the January

2017 denial of the plaintiffs’ request to get married. The

defendants *336 readily concede that the denial was a one

time rather than permanent denial; that the decision was

made, in part, because of the temporal proximity between

the rule-breaking and the request; and that the plaintiffs are

welcome to submit a new marriage request at Fox Lake, Nigl’s

new place of incarceration. While it would weigh on the

Court’s balancing of the Turner factors if this were a de facto

permanent ban, see, e.g., Beard v. Banks, 548 U.S. 521, 535,

126 S.Ct. 2572, 165 L.Ed.2d 697 (2006); Overton, 539 U.S.

at 134, 123 S.Ct. 2162, “Turner does not say that every delay

violates the Constitution,” Martin, 329 F.3d at 922. Under the

circumstances relevant to the one-time denial of the marriage

request in January 2017, the logical connection between the

denial and the asserted penological interests was not “so

remote as to render the [decision] arbitrary or irrational,”

nor was the denial an “exaggerated response” to concerns

regarding the plaintiffs’ pattern of misconduct, rule-breaking,

and deception in furtherance of their relationship. Turner, 482

U.S. at 89-90, 107 S.Ct. 2254.5

III. Conclusion

For the foregoing reasons, we AFFIRM the judgment of the

district court.

All Citations

940 F.3d 329

Footnotes

Johnston initially admitted to kissing Nigl but later denied it,

The standard is the same for both Nigl and Johnston. See Keeney v. Heath, 57 F.3d 579, 581 (7th Cir. 1995) (“[S]o far

as challenges to prison regulations as infringing constitutional rights are concerned, the standard is the same whether

the rights of prisoners or of nonprisoners are at stake.”) (citation omitted).

The parties agree that the defendants cannot justify their denial of the marriage request based on the second or third

factors.

The plaintiffs concede that Johnston provided psychological services to Nigl and had a professional relationship with

him. Johnston also wrote on a Department form that the details of how she met Nigl were protected by the Health

Insurance Portability and Accountability Act, which safeguards medical information. The plaintiffs nevertheless dispute

the characterization of Nigl as Johnston’s former “patient.” Regardless of how the relationship is labeled, the Board

concluded that Johnston, a licensed psychologist, violated rules designed to protect clients and patients in connection

with her relationship with Nigl.

The Court need not reach, and does not address, issues of qualified immunity, standing, or mootness.

Appendix A

Case: 19-1618

Filed: 11/21/2019

Document: 29

Pages: 1

Llmtcii jStates Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

November 21,2019

JOEL M. FLAUM, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

MICHAEL Y. SCUDDER, Circuit Judge

No. 19-1618

PAUL NIGL, et al„

Plaintiffs-Appellants,

JON LITSCHER, et al.,

Defendants-Appellees.

Appeal from the United States District

Court for the Eastern District of Wisconsin.

No. 2:17-cv-00925

J.P. Stadtmueller,

Judge.

ORDER

On consideration of the petition for rehearing and petition for rehearing en banc

filed by the plaintiffs-appellants in the above case on November 6, 2019, no judge in

active service has requested a vote thereon and all judges on the original panel have

voted to deny the petition. The petition is therefore DENIED.

Nigl v. Litscher, 378 F.Supp.3d 729 (2019)

€=> Particular rights and disabilities

A prisoner's fundamental right to marry is

subject to substantial restrictions as a result of

incarceration.

378 F.Supp.3d 729

United States District Court, E.D. Wisconsin.

Paul M. NIGL and Sandra Johnston, Plaintiffs,

Jon LITSCHER, Michael Meisner, Sara

[3]

Hungerford, and Zachary Schroeder, Defendants.

Prisons

#= Particular rights and disabilities

Case No. 17-CV-925-JPS

A prison regulation that impinges on an inmate's

right to marry is permitted so long as it

is reasonably related to legitimate penological

interests.

Signed 03/29/2019

Synopsis

Background: Prisoner and former prison employee brought §

1983 action against corrections officers and secretary alleging

violation of their Fourteenth amendment rights arising out of

refusal to allow prisoner and former employee to marry and

denial of visitation privileges. Parties filed cross-motions for

summary judgment.

Correction officers and secretary's motion granted.

Motion for Summary Judgment

West Headnotes (14)

Marriage and Cohabitation

#==» Civil status or condition

Prisons

#=■ Particular rights and disabilities

15]

The Constitution protects a prisoner's

fundamental right to marry; he does not lose

that constitutional protection simply because he is

imprisoned.

|2]

Prisons

#=» Regulation and supervision in general; role

of courts

Courts consider four factors to- determine the

. reasonableness of a prison regulation that restricts

a constitutional right: (1) whether a valid, rational

connection exists between the regulation and

a legitimate government interest behind the

rule, (2) whether there are alternative means of

exercising the right in question, (3) what impact

accommodation of the asserted constitutional

right would have on guards, other inmates, and

on the allocation of prison resources, and (4)

what easy alternatives exist to the regulation

because, although the regulation need not satisfy

a least restrictive alternatives test, the existence

of obvious alternatives may be evidence that the

regulation is not reasonable.

Holdings: The District Court, J. P. Stadtmueller, J., held that:

[ 1 ] decision was reasonably related to goal of ensuring secure

prison;

[2] litigants in other cases were not sufficiently comparable;

and

[3] decision was rational exercise of discretion.

[1]

Marriage and Cohabitation

#= Civil status or condition

Marriage and Cohabitation

•» Civil status or condition

Prisons

Regulation and supervision in general; role

of courts

Factors to determine the reasonableness of a

prison regulation that restricts a constitutional

right tend to blend together and are not meant to

be weighed according to any precise formula.

[6]

Prisons

Appendix B

NigI v. Litseher, 378 F.Supp.Sd 729 {2019}

#=» Regulation and supervision in general; role

of courts

[10]

Although all factors to determine the

reasonableness of a prison regulation that restricts

a constitutional right to marry are important,

the first factor, which considers whether a valid,

rational connection exists between the regulation

and a legitimate government interest behind the

rule, can act as a threshold factor regardless which

way it cuts.

f7]

[8]

Prisons

#=» Conduct and control in general

Decision of corrections officers and secretary

to forbid marriage between prisoner and former

prison employee was reasonably related to

goal of ensuring secure prison where staff and

inmates respect rules; officers and secretary were

tasked with protecting safety and security of

inmates, staff, and public who entered corrections'

institutions, corrections had strict rules against

fraternization between inmates and staff in order

to ensure security, and prisoner and former

prison employee demonstrated willingness to

bend corrections' mles in furtherance of their

relationship.

Prisons

#= Regulation and supervision in general; role

of courts

In applying test to determine the reasonableness

of a prison regulation that restricts a constitutional

right, a regulation cannot be sustained where the

logical connection between the regulation and the

asserted goal is so remote as to render the policy

arbitrary or irrational.

[11]

Constitutional Law

#= "Class of one" claims

In a class-of-one equal protection case under

the Fourteenth Amendment, the plaintiff must

prove that he was intentionally treated differently

from others similarly situated and that there is no

rational basis for the difference in treatment. U.S.

Const. Amend. 14.

Prisons

Evidence

Although the burden of persuasion is on

the prisoner to disprove the validity of a

prison regulation that restricts a constitutional

right, prison officials must still articulate their

legitimate governmental interest in the regulation

and provide some evidence supporting their

concern.

Prisons

#=> Discipline, security, and safety in general

[12]

Constitutional Law

#= Prisons

Prisons

#= Visitors

[9]

Prisons

#=> Regulation and supervision in general; role

of courts

When considering factors to determine the

reasonableness of a prison regulation that

restricts a constitutional right, courts must

accord substantial deference to the professional

judgment of prison administrators, who bear

a significant responsibility for defining the

legitimate goals of a corrections system and

for determining the most appropriate means to

accomplish them.

Litigants in other cases involving visitation

requests by former corrections employees were

not sufficiently comparable to prisoner and

former prison employee, and thus there were

no similarly-situated comparators to prisoner

and former prison employee who were denied

visitation by corrections officers and secretary,

as required for class-of-one equal protection

claim under the Fourteenth Amendment; other

cases involved different prison officials at

different institutions, former prison employee's

final visitation request was denied less than two

years after she was terminated, several years had

passed after litigants fraternization with inmates

Appendix B

Nigl v. Litscher, 378 F.Supp.3d 729 (2019)

before they were permitted to visit those inmates,

former prison employee was psychologist who

fraternized with prisoner, and litigants did not

have similar positions relative to inmates. U.S.

Const. Amend. 14.

[13]

Constitutional Law

©» Prisons

Prisons

#= Visitors

Decision of corrections officers and secretary to

deny visitation to prisoner and former prison

employee was rational exercise of discretion, as

related to class-of-one equal protection claim

under the Fourteenth Amendment; officers and

secretary believed that former prison employee

posed threat to institution security because

she had demonstrated willingness to break

institution's rules, and they believed visits would

have compromised prisoner's rehabilitation

because the pair would' have essentially been

rewarded despite breaking fraternization rules.

U.S. Const. Amend. 14.

J. P. Stadtmueller, U.S. District Judge

1. INTRODUCTION

Plaintiffs Paul M. Nigl (“Nigl”), a prisoner, and Sandra

Johnston (“Johnston”), his fiancee, filed a pro se complaint

under 42 U.S.C. § 1983, alleging their civil rights were

violated. (Docket #1). Specifically, the Plaintiffs allege

that the Defendants, officers of the prison where Nigl

was previously housed and the Wisconsin Department

of Corrections secretary, violated Plaintiffs' Fourteenth

Amendment right to form an intimate relationship by not

allowing them to marry. Plaintiffs also allege a violation

of their Fourteenth Amendment right to equal protection

because Defendants have denied them visitation privileges

but have, according to Plaintiffs, permitted visitation for

similarly-situated persons.

The parties have filed cross-motions for summary judgment.

(Plaintiffs' Motion, Docket #46; Defendants' Motion, Docket

#51). Those motions are now fully briefed and ripe for

adjudication. See (Docket #46-#59, #65-#68, #72—#75). For

the reasons explained below, Defendants' motion will be

granted, Plaintiffs' motion will *732 be denied as moot, and

this case will be dismissed.

2. STANDARD OF REVIEW

[14]

Constitutional Law

©=» "Class of one" claims

Class-of-one equal protection claims under the

Fourteenth Amendment are very difficult, if

not impossible, to prove in the context of

an official's discretionary decision-making. U.S.

Const. Amend. 14.

Attorneys and Law' Firms

*731 Mark G. Weinberg, Law Office of Mark G. Weinberg,

Chicago, IL, for Plaintiffs.

Anne M. Bensky, Wisconsin Department of Justice Office of

the Attorney General, Madison, WI, for Defendants.

ORDER

Federal Rule of Civil Procedure 56 provides that the court

“shall grant summary judgment if the movant shows that

there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a); see Boss v. Castro, 816 F.3d 910, 916 (7th Cir.

2016). A fact is “material” if it “might affect the outcome of

the suit” under the applicable substantive law. Anderson v.

Liberty Lobby, Inc., All U.S. 242, 248, 106 S.Ct. 2505, 91

L.Ed.2d 202 (1986). A dispute of fact is “genuine” if “the

evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Id. The court construes all facts and

reasonable inferences in the light most favorable to the non

movant. Bridge v. New Holland Logansport, Inc., 815 F.3d

356, 360 (7th Cir. 2016).

3. RELEVANT FACTS

The following facts are material to the disposition of

Defendants' motion for summary judgment. They are drawn

from the parties' factual briefing, (Docket #48-#50, #52#58, #66-#68, #72—#73, #75), unless otherwise noted. The

Appendix B

NigI v. Litscher, 378 F.Supp.3d 729 (2019)

■>

Court will discuss the parties' principal factual disputes as

appropriate.

Nigl’s approved visitor list and Nigl and Johnston's request

to marry.

3.1 The Parties

Finally, Defendant Jon Litscher served as the secretary of

Corrections from March 2016 until his retirement in June

2018.

Nigl has been a prisoner within the Wisconsin Department

of Corrections (“Corrections”) since 2001. He is serving a

100-year bifurcated sentence for two counts of intoxicated

homicide by use of a vehicle. From the time he was

first incarcerated until September 2015, he was housed

at Waupun Correctional Institution (“Waupun”). Between

September 2015 and June 2018, he was housed at Redgranite

Correctional Institution (“Redgranite”). It was during his

incarceration at Redgranite that Johnston, his fiancee, sought

to be placed on his visitor list and the couple requested

permission to be married. Since June 2018, he has been

housed at Fox Lake Correctional Institution.

Johnston is a former Corrections employee. From April 2013

until January 2015, Johnston worked as a psychologist at

Waupun, where she met Nigl. She provided psychological

services to Nigl and had numerous clinical contacts with him

while working at Waupun.1 On January 10,’ 2015, Johnston

left her job at Waupun and began to work at the Wisconsin

Resource Center, which is not a Corrections facility. Her

hiatus from employment with Corrections lasted about six

months. On or around July 13, 2015, Johnston returned to

employment with Corrections, this time as a psychologist in

Corrections' central office in Madison. Her position in the

central office was terminated in October 2015, for reasons

explained below.

Defendant Michael Meisner (“Meisner”) has been the warden

of Redgranite since March 2014. Meisner was the final

decisionmaker who denied Johnston's requests to be placed

on NigPs approved visitor list at Redgranite and denied Nigl

and Johnston's request to marry.

Defendant Sara Hungerford (“Hungerford”) is a licensed

social worker. She *733 worked for Corrections from 2009

through 2017, when she retired from state service. She was

a social worker at Redgranite from April 2015 through June

2017. She reviewed and ultimately recommended denial of

Johnston's requests to be placed on Nigl's approved visitor list

and Nigl and Johnston's request to marry.

Defendant Zachary Schroeder has been a unit manager

at Redgranite since February 2016. He was Hungerford's

supervisor and he conferred with her in the decision to

recommend denial of Johnston's requests to be placed on

3.2 Nigl and Johnston's Relationship

On January 12, 2015, days after Johnston left her

employment at Waupun, Nigl asked his brother to seek out

Johnston's contact information. Nigl began communicating

with Johnston by letter, and then also by phone and email, on

a regular basis. In April 2015, Nigl asked Johnston to marry

him and she said yes.

As noted above, Johnston returned to employment with

Corrections in July 2015. On her first day of work at the

central office in Madison, she submitted a “fraternization

policy exception request” to her supervisor, Gary Ankarlo

(“Ankarlo”), requesting permission to have contact with

Nigl. On the form, under the section titled, “Nature of

Employee Relationship to Offender,” Johnston checked the

box marked “other” and wrote, “Met at WCI approximately

04/13. Relationship | professional.” (Docket #55-1 at 1).

Johnston did not disclose that she was engaged in a romantic

relationship with Nigl. Ankarlo refused to process the

fraternization request as he was supposed to, for reasons

not entirely clear from the record, and he returned the form

to Johnston. Nigl and Johnston continued to have contact

anyway.

In September 2015, Corrections learned from an anonymous

survey submission that Johnston had a relationship with an

inmate. Johnston was placed on administrative leave and then,

on October 29, 2015, her position was terminated “due to

allegations that have been made against you pertaining to

violation of the Department's fraternization policy.” (Docket

#55-3 at 2).

Two investigations ensued. First, Corrections undertook an

investigation to determine whether Johnston had violated

department rules—such as Executive Directive #16, which

prohibits staff from having unapproved relationships with

offenders—and whether she had violated the Prison Rape

Elimination Act by engaging in a relationship with a patient

inmate (the “Employee/PREA Investigation”).

After this investigation commenced, Meisner, the warden

of Redgranite, contacted the Wisconsin Department of

Safety and Professional Services (“DSPS”) to complain

Appendix B

NigI v. Litscher, 378 F.Supp.3d 729 (2019)

to the Wisconsin Psychology Examining Board about

Johnston's alleged relationship with Nigl. Meisner testifies by

declaration that he felt he had a duty to report what he believed

was a significant professional ethical violation. DSPS

undertook its own investigation (the “DSPS Investigation”).

3.3 The Employee/PREA Investigation

The Employee/PREA investigation began in early November

2015 at Redgranite, as that was where Nigl was housed at

the time. During the investigation, Redgranite staff searched

Nigl's cell and found *734 numerous cards, letters, and

photographs from Johnston. Some of the photos depicted

Johnston in various stages of undress and in sexually

provocative poses. Johnston sent some of these items under

the alias “Cassie Fox” or “Cass.” She had also set up an

account with the prison's phone system under the name Cassie

Fox.

Meisner testifies that because of Johnston's status as a

current employee of Corrections, these items were considered

contraband. He also says that he concluded Johnston's use of

an alias was done with the intent of concealing her identity

as a former Corrections employee and demonstrated her

willingness and ability to thwart security protocol of the

institution. The Plaintiffs insist that Johnston sent these items

during the period when she was not employed by Corrections.

See (Docket #73 at 13).

On or around December 7, 2015, the Employee/PREA

Investigation concluded. The allegation that Johnston was in

a relationship with Nigl was determined to be substantiated.

The question of whether Johnston had violated the PREA

was not substantiated, based on inconclusive evidence as

to whether the couples' intimate relationship began while

Johnston was employed at Waupun.

3.4 The DSPS Investigation

The DSPS conducted its own investigation, which culminated

in an order from the Psychology Examining Board dated

August 25, 2016. (Docket #52-7 at 2-10). That order begins

with findings of fact learned in the investigation. Id. at

1. According to the order, Johnston admitted to a DSPS

investigator that Nigl had kissed her on her last day at

Waupun, but she did not report it. Id. at 4. She also admitted

that she had at least one sexual fantasy about Nigl before

leaving Waupun. Id. Johnston and Nigl now testily that they

did not kiss on that day; they only hugged. (Docket #68 at 1).

DSPS found that Johnston engaged in unprofessional conduct

and was subject to discipline under state law. Id. at 4—5. Her

license was suspended for one year. Id. at 5.

3.5 Requests for Visitation and Marriage

In November 2015, Johnston submitted an application to

be placed on Nigl's approved visitors' list. On December 2,

2015, Joli Grenier, a social worker, recommended denial of

the visitor application because Wis. Admin. Code § DOC

309.08(4)(j) prohibits visits for people who were employed

by Corrections within the previous 12 months. Johnston, of

course, had been employed by Corrections in the previous

12 months. Johnston wrote to Meisner about her visitation

request, and Meisner told her that the denial was appropriate,

but she could resubmit an application after six months.

A year later, in November 2016, Johnston submitted a second

application to be placed on Nigl's approved visitors' list. On

November 30, 2016, Hungerford, then a social worker at

Redgranite, recommended denial of the second application on

the grounds that:

The warden has reasonable grounds to believe that you, the

proposed visitor, have attempted to bring contraband into

any penal facility, or that you otherwise pose a threat to

the safety and security of visitors, staff, offenders or the

facility[;]

The warden has reasonable grounds to believe that

the offender's reintegration into the community or

rehabilitation would be hindered); and]

The warden has reasonable grounds to believe that the

offender's offense history indicates there may be a problem

with the proposed visitation).]

*735 (Docket #52-6 at 5). Schroeder, Hungerford's

supervisor, adopted Hungerford's recommendation.

On December 7, ,2016, Nigl, believing Corrections' denial of

visitation to be unreasonable, submitted an inmate grievance.

The inmate complaint examiner (“ICE”) recommended

dismissal of the grievance because denial of visitation and

marriage was “reasonable given the fact the proposed visitor

has shown disregard for [Corrections] policy when she was

employed by [Corrections], The propensity for the same/

similar behavior to reoccur could pose a threat to the safety

and security of visitors, staff, offenders and the facility.” Id.

at 3-4. Nigl appealed, and his appeals were denied.

Sometime in early December 2016, Johnston and Nigl

submitted a request for marriage. They included confirmation

Appendix B

Nigi v. Litscher, 378 F.Supp.3d 729 (2019)

of an officiant who had agreed to officiate the wedding.

Pursuant to Division of Adult Institutions Policy and

Procedure #309.00.06, an inmate may request to marry while

incarcerated if the following conditions are met:

legitimate penological interests; and the lack of longstanding

relationship. He believes *736 their relationship was

established on lies, deception, and rule breaking. See (Docket

#52).

A. The marriage does not pose a threat to the security of the

institution/center or a threat to the safety of the public;

On January 26 and February 11, 2017, Nigl submitted inmate

grievances about the marriage denial. The ICE recommended

denial of the grievances, finding that staff had acted in

accordance with relevant policy in prohibiting the marriage.

Nigl appealed, and his appeals were denied.

B. There are no legal impediments to the marriage;

C. The inmate is not scheduled for release within nine

months;

D. The proposed spouse or the proposed spouse's children

are not victims of the inmate;

E. The proposed spouse has never been convicted in any

criminal activity with the inmate; and

F. The proposed spouse has been on the inmate's visiting

list for a minimum of one year, or is able to demonstrate

a longstanding relationship with the proposed spouse.

(Docket #52-9 at 1-2). The decision to approve or deny a

marriage request is ultimately a matter within the warden's

discretion. Hungerford received the marriage request and

she reviewed it first, in consultation with Schroeder. On

January 25, 2017, Hungerford recommended that the warden

deny the request because

there are reasonable grounds to believe

the marriage poses a threat to the

security of the facility or a threat to the

safety of the public, or threatens other

legitimate penological interests... [and

the] proposed spouse has not been

on the visiting list for at least one

year and is not able to demonstrate a

longstanding relationship.

(Docket #52-8 at 4-5) (internal punctuation omitted).

Schroeder and Meisner agreed with Hungerford's

recommendation. Meisner states this his decision was based

on Johnston having violated the code of professional conduct

as a psychologist, as evidenced by the DSPS final order;

Johnston having violated department work rules; Meisner's

belief that Nigl is the victim of Johnston, a former Corrections

employee; Meisner's belief that the marriage would pose a

threat to the security of the facility and would threaten other

4. ANALYSIS

Plaintiffs and Defendants each claim that the undisputed facts

show they are entitled to summary judgment. Plaintiffs seek

an injunction ordering Defendants to approve their request to

marry and an award of compensatory and punitive damages.

Defendants deny liability and claim that they are immune

from a suit for damages under the doctrine of qualified

immunity. As described more fully below, the Court finds that

Defendants are entitled to summary judgment as a matter of

law on each of Plaintiffs' claims.

4.1 Right to Marry

[1]

[2]

[3] The Constitution protects a prisoner's

fundamental right to marry; he does not lose that

constitutional protection simply because he is imprisoned.

Riker v. Lemmon, 798 F.3d 546, 551 (7th Cir. 2015) (citing

Turner v. Sqfley, 482 U.S. 78, 94-96, 107 S.Ct. 2254, 96

L.Ed.2d 64 (1987)); see also Obergefell v. Hodges, ---U.S.------, 135 S. Ct. 2584, 2598, 192 L.Ed.2d 609 (2015)

(recognizing that “[ojver time and in other contexts, the Court

has reiterated that the right to marry is fundamental under the

Due Process Clause”). That protection, however, “is subject

to substantial restrictions as a result of incarceration.” Turner,

482 U.S. at 95, 107 S.Ct. 2254. A prison regulation that

impinges on an inmate's right to marry is permitted so long as

it is “reasonably related to legitimate penological interests.”

Id. at 89, 107 S.Ct. 2254.

[6] Courts consider four factors to determine the

[41

[5]

reasonableness of a prison regulation that restricts the right

to marry:

(1) whether a valid, rational

connection exists between the

and

legitimate

regulation

government interest behind the mle;

(2) whether there are alternative means

Appendix ^

WE'

Nigl v. Litscher, 378 F.Supp.3d 729 (2019)

of exercising the right in question;

(3) what impact accommodation of

the asserted constitutional right would

have on guards, other inmates, and

on the allocation of prison resources;

and (4) what easy alternatives exist

to the regulation because, although

the regulation need not satisfy a

least restrictive alternatives test, the

existence of obvious alternatives may

be evidence that the regulation is not

reasonable.

Riker, 798 F.3d at 552 (citation omitted).3 These factors tend

to blend together and are not meant to be weighed according

to any precise formula. Aiello v. Litscher, 104 F. Supp. 2d

1068, 1075 (W.D. Wis. 2000). Although all four factors are

important, the first can act as a “threshold factor” regardless

which way it cuts. Riker, 798 F.3d at 553 (quoting Singer v.

Raemisch, 593 F.3cf529, 534 (7th Cir. 2010)); see'also Mays

v. Springborn, 575 F.3d 643, 648 (7th Cir. 2009) (“Where

there is only minimal evidence suggesting that the prison's

regulation is irrational, running through each factor at length

is unnecessary.”).

*737 |7| In applying this test, “a regulation cannot be

sustained where the logical connection between the regulation

and the asserted goal is so remote as to render the policy

arbitrary or irrational.” Riker, 798 F.3d at 553 (internal

citations omitted) (finding that a prison's unsubstantiated

concerns regarding institutional safety precluded summary

judgment for the defendants in a case where a former prison

employee challenged the facility's decision to prohibit her

marriage to an inmate).

Johnston from marrying, see (Docket #59 at 11-15), the

Court's analysis will focus on the first factor.4 It asks whether

the Defendants have presented a valid, rational connection

between the marriage prohibition and a legitimate penological

interest. The Defendants have provided several reasons to

justify their decision to prohibit the marriage.

First, Defendants say the marriage poses a threat to the

institution because of Johnston's demonstrated willingness

to break the rules—both Corrections' rules and the ethical

rules of her profession. (Docket #59 at 12). As to the

latter, the Defendants point to the DSPS order finding that

she had committed professional misconduct by engaging

in “seductive, romantic, or exploitive” conduct with a

patient and suspending her license. Id. As to her violation

of Corrections' rules, Defendants cite many instances of

misconduct:5 Johnston and Nigl kissing on Johnston's last

day at Waupun (though Plaintiffs now deny that happened),

Johnston sending Nigl mail using an alias in order to

deceive the prison (though Plaintiffs deny a deceptive

intent), Johnston misrepresenting her relationship with Nigl

as “professional” on the fraternization request form she

submitted upon her re-employment with Corrections, and

Johnston ignoring Corrections policy by continuing to have

contact with Nigl even though her fraternization request had

not been approved. *738 Id. at 14—15. The Defendants argue

that allowing these rulebreakers to marry would “threaten[ ]

prison security and undermine[ ] inmate rehabilitation.” Id. at

15.

Second, Meisner believes that Johnston, in her position as

a professional psychologist and Corrections employee, has

victimized Nigl. Id. at 13. This, Meisner says, establishes

“reasonable grounds to believe the marriage poses a threat

to the security of the facility and threatens other legitimate

penological interests.”/^, at 13.

[81

[9]. “Although the burden of persuasion is on the

prisoner to disprove the validity of a regulation, prison

officials must still articulate their legitimate governmental

interest in the regulation and provide some evidence

supporting their concern.” Id. (internal citations omitted).

Nonetheless, courts “must accord substantial deference to the

professional judgment of prison administrators, who bear a

significant responsibility for defining the legitimate goals of a

corrections system and for determining the most appropriate

means to accomplish them.” Id. (citation omitted).

[10] Because the first Turner factor can be a “threshold”

inquiry, and because Defendants do not argue that any other

Turner factor supports their decision to prohibit Nigl and

Finally, Defendants argue the marriage denial was appropriate

because Johnston and Nigl have not demonstrated a

longstanding relationship. This is premised in part on

Johnston not being an approved visitor for Nigl (though it

was Defendants' decision to keep her off his visitor list,

based on a violation of the fraternization rule), id. at 12, and

Meisner's belief that Johnston and Nigl “have demonstrated a

relationship that was established on lies, deception, and rule

breaking.” (Docket #52 at 15). On this point, Plaintiffs aver

that they have been “dating” since January 2015, have spoken

on the phone or by email daily since then, became “betrothed”

by entering into a “Covenant of Love” in November 2015, and

Appendix B

Nigl v. Litscher, 378 F.Supp.3d 729 (2019)

love each other and desire to enter into the sacred covenant of

marriage. (Docket #49 at 1-2).

The Court finds that Defendants' decision to deny Plaintiffs'

request to marry was reasonably related to a legitimate

penological interest. Corrections and the Defendants in this

case are tasked with protecting the safety and security

of inmates, staff, and the public who enter Corrections'

institutions. Corrections has strict rules against fraternization

between inmates and staff in order to ensure that security. As

part of their charge, wardens must carefully monitor staff and

inmate relationships to ensure that the institution's rules are

obeyed and its security is not breached.

•

In this case, Plaintiffs have demonstrated a willingness to

bend Corrections' rules in furtherance of their relationship.

Developing a personal relationship while Johnston was

employed at Waupun, communicating under an alias,

misrepresenting the nature of their relationship on Johnston's

fraternization request, and continuing their relationship,

without approval, when Johnston was employed at the

"central office collectively demonstrate that Plaintiffs do not"

have respect for the integrity of Correction's rules and

its process for approving inmate-staff relationships. These

considerations are relevant to the orderly management of the

institution. Defendants' decision to forbid Plaintiffs' marriage,

then, is reasonably related to their goal of ensuring a secure

prison where staff and inmates respect the rules.

4.2 Equal Protection

[11] Next, Plaintiffs allege a class-of-one equal protection

claim under the Fourteenth Amendment based on Defendants'

refusal to allow visitation for them but not for other couples

they say are similarly situated to them. In a class-ofone equal protection case, the plaintiff must prove that he

was “intentionally treated differently from others similarly

situated and that there is no rational basis for the difference in

treatment.” Engquist v. Or. Dep't ofAgric., 553 U.S. 591,601,

128 S.Ct. 2146,170 L.Ed.2d 975 (2008). The Seventh Circuit

has implied that it is possible for an inmate, or his would-be

visitor, to state a class-of-one equal protection claim based

on denial of visitation if the plaintiff alleges that the prison

allows visits between similarly-situated inmates and visitors.

Bilka v. Farrey, 447 F. App'x 742, 744 (7th Cir. 2011).

*739 4.2.1 No Similarly-Situated Comparators

Plaintiffs point to two cases involving visitation requests

by former Corrections employees as evidence that they are

being treated differently than similarly-situated people with

no rational basis: Bilka and State of Wisconsin ex rel. David

W. Bentley v. Edward Wall, et al., Dane County Case No. 15CV-333 (Wis. Cir. Ct. 2015). However, the litigants in those

cases are not sufficiently comparable to Plaintiffs. ®

The plaintiff in Bilka was Susan Bilka (“Bilka”), a former

Corrections employee who had befriended an inmate,

Mackenzie Burse (“Burse”), while working in food services

for the New Lisbon Correctional Institution. Id. at 743.

She began smuggling him contraband, including cocaine,

marijuana, and alcohol. Id. The prison discovered Bilka's

misconduct, and she resigned from her position and pleaded

guilty to delivering illegal articles to an inmate. Id. Once

Bilka's sentence ended, she asked the prison to place her on

Burse's visitor list. Id. The prison denied her request and

explained that she posed a threat to the safety and security

of the facility. Id. Bilka continued to apply for visitation with

Burse for two years but the prison would not permit it. Id.

Bilka brought a class-of-one equal protection claim and the

district court dismissed it for failure to state a claim. The

Seventh Circuit affirmed, stating that even if Bilka believed

that prison administrators were acting out of spite, she did

not allege “that the prison allows other state offenders who

have secreted contraband to inmates to continue to visit those

inmates. Absent such an assertion, she has no class-of-one

claim for an equal protection violation.” Id. at 744.

Plaintiffs state that, sometime after the Seventh Circuit's

order, Corrections began permitting visits between Bilka and

Burse. To support this fact, Plaintiffs provide a declaration

from Edward Jackson (“Jackson”), an inmate who was housed

at Green Bay Correctional Institution in 2012 and 2013 along

with Burse. (Docket #47-2 at 84—85). Jackson confirms that

while Bilka was originally prohibited from visiting Burse, she

was later placed on Burse's approved visitors' list. Id. Between

January 2012 and September 2013, Jackson says that he was

often in the visiting room together with Burse and Bilka. Id.

In Bentley, Jr., the other case on which Plaintiffs rely,

David W. Bentley, Jr. (“Bentley”) was an inmate at Waupun

who complained about the prison's refusal to place Kristina

Rickman (“Rickman”) on his visitors list. See (Docket

#47-2 at 71-78). Rickman and Bentley became romantically

involved while Rickman was a Corrections employee. She

left Corrections when the relationship was discovered and

ultimately pleaded guilty to misconduct in public office.

In October 2015, the Dane County Circuit Court affirmed

the prison's decision to forbid visitation between Bentley

Appendix B

Nigl v, Litscher, 378 F.Supp.3d 729 (2019)

and Rickman. Id. Plaintiffs provide evidence in the form of

a Corrections memorandum that in March 2016, Rickman

was placed on Bentley's visitors list for no-contact visits at

the Wisconsin Secure Program Facility. (Docket #67 at 9).

Defendants *740 do not dispute this. (Docket #72 at 2).

(12) The circumstances surrounding Defendants' decision

to prohibit Johnston and Nigl from visiting are not similar

to those in Bilka or Bentley in several material respects.

First, and most obviously, Bilka and Bentley involve different

prison officials at different institutions. The wardens at those

institutions have made judgments, in their discretion, about

the propriety of visitation in their prisons between certain

former Corrections employees and inmates; but that is not

relevant to whether the Defendants in this case have treated

Johnston and Nigl different from other similarly situation

people.

Defendants believed that Johnston posed a threat to institution

security because she had demonstrated her willingness to

break the institution's rules. They also believed Johnston's

visits would compromise Nigl's rehabilitation because the

pair would have essentially been rewarded despite breaking

fraternization rules. Therefore, the Defendants' decision to

deny visitation was not arbitrary; their exercise of discretion

was based on legitimate reasons.

5. CONCLUSION

On the undisputed facts in the record, summary judgment

is appropriate in favor of the Defendants on both of

Plaintiffs' claims.9 The Court must, therefore, grant *741

the Defendants' motion, deny Plaintiffs' motion as moot, and

dismiss this action with prejudice.10

Accordingly,

Next, Johnston's final visitation request was denied less

than two years after she was terminated from Corrections

for fraternization violations. By contrast, several years had

passed after Bilka's and Rickman's fraternization with inmates

IT IS ORDERED that the Defendants' motion for summary

judgment (Docket #51) be and the same is hereby

GRANTED;

before they were permitted to visit those inmates. As the

Defendants note, the passage of time is a relevant factor in the

warden's determination of whether visitation is appropriate.

IT IS FURTHER ORDERED that the Plaintiffs' motion for

summary judgment (Docket #46) be and the same is hereby

DENIED as moot;

Finally, Johnston is a psychologist who violated the ethical

rules of her profession by fraternizing with Nigl. Based in

part on her professional position relative to Nigl, Meisner

believes that Johnston victimized Nigl and continues to pose

a threat to Nigl. There is no evidence that Bilka or Rickman

had similar positions relative to the inmates with whom they

formed relationships.

IT IS FURTHER ORDERED that the Plaintiffs' motion to

compel (Docket #41) be and the same is hereby DENIED;

IT IS FURTHER ORDERED that the Plaintiffs' motion

for appointment of counsel (Docket #77) be and the same is

hereby DENIED; and

IT IS FURTHER ORDERED that this action be and the

same is hereby DISMISSED with prejudice.

4.2.2. Defendants' Rational Basis to Deny Visitation

All Citations

[13]

[14] In addition to a lack of comparators, Plaintiffs'

378 F.Supp.3d 729

equal protection claim fails because the Defendants' denial

of visitation was a rational exercise of discretion.

The

Footnotes

Plaintiffs attempt to dispute that Nigl was, in a technical sense, Johnston's patient, noting that “it is not unusual for inmates

to drop into see a psychology staff member whether or not they were on a professional mental health caseload.” (Docket

#66 at 2; #67 at 7-8). But Plaintiffs do not actually dispute that Nigl saw Johnston for professional services, and

Defendants cite sufficient evidence to show this to be true. See, e.g., (Docket #52-7 at 2-3; #54-2 at 21; #54-5 at 18,

21). This fact is not, therefore, genuinely disputed.

As this Court has previously noted, there is no section of DAI 309.00.06 specifically dedicated to providing the warden

guidance on his/her decision to grant or deny a marriage request, seemingly leaving the warden with unfettered discretion.

see Reed v. Kemper, No. 15-CV-208-JPS, 2015 WL 9239813, at *3 (E.D. Wis. Dec. 17, 2015), affd in part, vacated in

Appendix H

Nig! v, Litscher, 378 F.Supp.3d 729 (2019)

part, remanded, 673 F. App'x 533 (7th Cir. 2016). In other words, the policy does not mandate which—if any—factors

the warden must consider in evaluating an inmate's marriage request. Id.

The standard is the same for Nigl and Johnston, even though Nigl is incarcerated and Johnston is not. Keeney v. Heath,

57 F.3d 579, 581 (7th Cir. 1995) (“[S]o far as challenges to prison regulations as infringing constitutional rights are

concerned, the standard is the same whether the rights of prisoners or of nonprisoners are at stake.”) (citation omitted).

Nor could Defendants reasonably justify the marriage denial with reference to the other factors. As to the second factor,

there are no alternative means for Nigl and Johnston to marry the person of their choosing besides marrying each other;

the right to marry includes the right to select one's spouse, see Obergefell, 135 S.Ct. at 2599; see also Riker, 798 F.3d at

555 (dismissing defendants' argument that because a former prison employee was free to marry anyone but an inmate,

the prohibition imposed a minimal burden). As to the third and fourth factors, Defendants have not put forward evidence

that arranging and monitoring a one-time meeting for a brief ceremony would strain prison resources, see Riker, 798

F.3d at 557 (“It is implausible to suggest, without some supporting evidence, that a brief marriage ceremony cannot be

accommodated without threatening institutional security and without imposing more than a de minimis impact on prison

resources.”).

Some of these instances of misconduct are premised on disputed facts, as explained parenthetically in text. Those

disputes do not preclude summary judgment because, even apart from those instances of misconduct that Plaintiffs

dispute, Defendants had other legitimate reasons to prohibit the marriage.

Before filing their summary judgment motion, Plaintiffs filed a motion to compel the Defendants to produce prison visitation

logs related to Burse and Bentley. (Docket #41). Because the Plaintiffs have provided other evidence to prove the fact for

which they wanted these records—that Burse and Bentley are now permitted visits with women with whom they started

relationships while the women were Corrections employees—the visitation logs are not necessary. The other evidence

they sought in the motion is not relevant. The motion will be denied.

Bilka's misconduct was committed in 2004 and she was allowed to visit Burse in 2012. Bilka v. Farrey, No. 11-C-0430,

2011 WL 2444045, at *1 (E.D. Wis. June. 15, 2011), affd, 447 F. App'x. 742 (7th Cir. 2011). The criminal complaint

charging Rickman with misconduct in office was filed in January 2012 and she was permitted to visit Bentley in 2016. see

Wisconsin v. Rickman, Brown County Case No. 2012CF333, available by searching the Wisconsin Circuit Court Access

website at wcca.wicourts.gov.

Class-of-one equal protection claims are very difficult, if not impossible, to prove in the context of an official's discretionary

decision-making, see Atkinson v. Mackinnon, No. 14-CV-736-BBC, 2015 WL 506193, at *1 (W.D. Wis. Feb. 6, 2015)

(prison disciplinary decisions not subject to equal protection challenge) (citing Engquist v. Or. Dep't of Agric., 553 U.S.

591,603-04,128 S.Ct. 2146,170 L.Ed.2d 975 (2008) (class-of-one equal protection claims not available for discretionary

decisions "based on a vast array of subjective, individualized assessments.”).

Because the Court finds summary judgment in favor of the Defendants is appropriate on the merits, the Court does not

reach the Defendants' request for application of the doctrine of qualified immunity. See (Docket #59 at 23-25).

In light of this dismissal, the Court will also deny Plaintiffs' motion to appoint counsel to assist them at trial. (Docket #77).

End of Document

Appendix

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.