Nigl v. Litscher

• Decision Date: 07 October 2019
• Docket Number: No. 19-1618,19-1618
• Parties: Paul NIGL, et al., Plaintiffs-Appellants, v. Jon LITSCHER, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

940 F.3d 329

Paul NIGL, et al., Plaintiffs-Appellants,

v.Jon LITSCHER, et al., Defendants-Appellees.

No. 19-1618

United States Court of Appeals, Seventh Circuit.

Argued September 17, 2019

Decided October 7, 2019

Rehearing and Rehearing En Banc Denied November 21, 2019

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.

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.¹

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 policy exception request, but Nigl and Johnston continued to have contact anyway. Because Johnston’s fraternization request 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.

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

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. Defendant-appellee 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 defendants’...