Flynn v. Burns

• Decision Date: 29 January 2018
• Docket Number: Case No. 17–CV–312–JPS
• Parties: Darryl Allen FLYNN, Plaintiff, v. Matthew BURNS, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

289 F.Supp.3d 948

Darryl Allen FLYNN, Plaintiff,

v.Matthew BURNS, Defendant.

Case No. 17–CV–312–JPS

United States District Court, E.D. Wisconsin.

Signed January 29, 2018

Darryl Allen Flynn, Waupun, WI, pro se.

Rebecca A. Paulson, Wisconsin Department of Justice Office of the Attorney General, Madison, WI, Wisconsin Dept of Justice, for Defendant.

ORDER

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

Plaintiff Darryl Allen Flynn ("Flynn"), a prisoner, brings this action pursuant to 42 U.S.C. § 1983 against Defendant Matthew Burns ("Burns"), a correctional officer at Waupun Correctional Institution ("Waupun"), arising from an allegedly unlawful no-contact order that prevented Flynn from having any contact with his daughter for a year. Burns filed a motion for summary judgment on October 2, 2017. (Docket # 26). The motion is fully briefed and, for the reasons stated below, it will be granted.¹

1. STANDARD OF REVIEW

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. , 477 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). The court must not weigh the evidence presented or determine credibility of witnesses; the Seventh Circuit instructs that "we leave those tasks to factfinders." Berry v. Chicago Transit Auth. , 618 F.3d 688, 691 (7th Cir. 2010). The party opposing summary judgment "need not match the movant witness for witness, nor persuade the court that [his] case is convincing, [he] need only come forward with appropriate evidence demonstrating that there is a pending dispute of material fact." Waldridge v. Am. Hoechst Corp. , 24 F.3d 918, 921 (7th Cir. 1994).

2. RELEVANT FACTS

2.1 The Parties

Flynn has been incarcerated at Waupun since 2014, and was previously housed there from 2005 to 2010. Burns is employed as a correctional officer at Waupun and holds the rank of lieutenant. He has held this position since April 2016.

2.2 Flynn's Contact With His Daughter and Her Mother

Natasha Williams ("Williams") is the mother of S.W., one of Flynn's daughters.²

On March 23, 2016, Flynn spoke with Williams about his desire to have routine contact with S.W. During this phone call, Williams indicated that she had no problem with Flynn contacting S.W. without going through her. She said that she felt S.W. was mature enough to decide whether she wanted to communicate with her father. After Flynn asked Williams for a picture of S.W., she replied: "Darryl listen, S.W. is 15 years old, if you want to write S.W. or talk to S.W., S.W. is old enough, she is in high school, she is old enough to be able to do all of that that you want her to do, she is not a little kid no more." See (Docket # 45 ¶ 5); (Docket # 48).³ Williams also stated: "And Darryl I ain't mad at you or nothing, I'm just saying that you all can have a conversation, you know, you all don't have to use me as a three-way." (Docket # 45 ¶ 6). At the time of this conversation, Flynn knew that S.W. lived sometimes at her mother's house and sometimes at her great-aunt's house.

On March 26, 2016, during a phone conversation between Flynn and his daughter, S.W. informed Flynn that she had written him two letters. He replied that he had never received them. During this same conversation, S.W. stated that she had not been receiving Flynn's mail, either. Flynn suspected that Williams had been intercepting mail to and from S.W., although S.W. did not actually say that this was occurring during the March 26 call. Additionally, during the call S.W. opined that Flynn's recurring phone calls to her had not been received because her mother's then-boyfriend had blocked the calls out of jealousy.

Knowing that S.W. was splitting her time between her mother's house and her great-aunt's house, that her mother's boyfriend was interfering with their contact by blocking his phone calls, and that Williams was intercepting their mail, Flynn decided to send letters to S.W.'s school to ensure that she received them. He wrote to the principal of the school and sought approval, explaining why he wanted to write S.W. at school and telling the principal that he would take a week's silence in response as a sign of approval to begin writing. After a week with no response, Flynn sent S.W. a greeting card to see if the school would in fact give it to her. It did.

After the greeting card, Flynn sent a letter and some self-addressed stamped envelopes to S.W.'s school. He wrote only her name on the envelopes, with the idea that whatever return address she placed on the envelope would be the address that he would write her at from then on. S.W. wrote back using the school's address as her return address. In the letter, she expressed admiration for Flynn and frustration at her mother, alleging that she was being mistreated at home.

Flynn avers that "[a]s a father, I felt obligated to make my daughter feel loved and special. I knew that the only way to accomplish this goal was to build and maintain a relationship with her despite her mother's attempts at parental alienation." Id. ¶ 14. Additionally, he felt no qualms writing to S.W. at school, since it was necessary to circumvent Williams' interception efforts and Williams had already given permission for such contact without her knowledge or involvement. Id. Flynn reports that every time S.W. wrote to him, she used her school's address as her return address. If at any time she had expressed to him that she did not want to be written at her school, Flynn avers that he would have immediately stopped. However, S.W. continued to write and express how happy she was to be corresponding with Flynn.

2.3 Burns' Contact With Williams and the No–Contact Order

On May 27, 2016, Williams, having learned that Flynn was writing to S.W. at school, called the institution to voice her concerns regarding Flynn contacting their daughter. Burns was the supervisor on duty that night who answered the call. Williams told Burns that Flynn was sending letters to their daughter at school in order to circumvent her from being able to read the letters.⁴ Burns offered that the institution could issue a no-contact order to prevent Flynn from contacting S.W. Williams assented and asked that the no-contact order be issued. Burns told Williams that he would issue the order that evening.

Burns avers that at this time it was his understanding that Williams was S.W.'s legal guardian. Burns did not confirm that Williams was in fact S.W.'s guardian or ask Williams to prove this in any way. He simply took her at her word. (Flynn suggests it may actually have been another individual calling, but this is pure speculation.) Additionally, Burns did not conduct any type of investigation into Williams' request prior to issuing the no-contact order. Based on his training and experience, taking such a request over the phone from the custodial parent of a minor is sufficient to warrant issuance of a no-contact order.

On May 27, Burns sent correspondence to Flynn ordering him to not communicate with Williams' daughter by any means. The no-contact order read: "On 5/27/2016, I received a complaint from Natasha Williams indicating that you have written and/or called her house or contacted her daughter at her school. This party has requested that you no longer write, call or contact them again. Therefore, I am ordering you to not communicate with this party again. Failure to comply with this order will result in disciplinary action." (Docket # 30–1).

2.4 Flynn Challenges the No–Contact Order

Since receiving the no-contact order, Flynn has submitted nineteen interview request forms to different staff members concerning the order.⁵ Flynn wrote eight such requests to Burns between May 28, 2016 and March 3, 2017. Burns only responded to three.

On May 28, 2016, Flynn wrote Burns two interview requests. In the first, he informed Burns that S.W. was his daughter and that paternity had been established in 2002. In the second, Flynn asked Burns what evidence of wrongdoing had he required Williams to produce before issuing the order and what Department of Corrections ("DOC") policy gave him the authority to impose such a restriction. Burns never answered those questions. On May 31, the Waupun security director, Meli, wrote to Flynn and confirmed that Burns had issued the no-contact order and that all questions should be directed to him.

On June 6, Flynn wrote Burns again and explained that he had not written to Williams or sent mail to her house. He explained that he had been contacting S.W. at school and that she wanted the contact. To prove this, Flynn sent Burns five pages from two different letters written by S.W. in which she expressed her desire to communicate with Flynn.

On June 10, Burns responded to one of Flynn's May 28 interview requests, stating that he had received a complaint from Williams and that, as a DOC employee, he was required to issue the no-contact order. He invited Flynn to file an inmate complaint through the Inmate Complaint Review System ("ICRS"). That same day, Flynn filed such a complaint, contending that the no-contact order violated his right to communicate with his daughter. Also on June 10, Flynn filed a motion in Milwaukee County Circuit Court seeking an order that would allow him to communicate with S.W. by letter, phone, and visitation.

Later that month, Burns was contacted by the inmate complaint examiner, James...