Sandra Nigl v. Cathy Jess ( 2021 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 20, 2021*
Decided April 21, 2021
Before
MICHAEL B. BRENNAN, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 20-3112
SANDRA K. NIGL, Appeal from the United States District
Plaintiff-Appellant, Court for the Western District of
Wisconsin.
v. No. 18-cv-882-bbc
CATHY JESS, et al., Barbara B. Crabb,
Defendants-Appellees. Judge.
ORDER
Sandra Nigl, a former psychologist, lost her job at the Wisconsin Department of
Corrections and her license to practice after she became romantically involved with
inmate Paul Nigl, who was her patient and is now her husband. This is her second suit
arising from her relationship with Paul. In the first, we considered their right to marry.
Nigl v. Litscher, 940 F.3d 329 (7th Cir. 2019). Now, she argues that her discharge and
*We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).
No. 20-3112 Page 2
license suspension violated her rights to intimate association and procedural due
process. Because legitimate interests in prison security and patient protection justified
the firing and suspension, we affirm summary judgment for the defendants.
Sandra treated Paul between May 2013 and January 2015, after which their
relationship turned romantic. As a psychologist at Waupun Correctional Institution in
Wisconsin, where Paul was housed, she kept notes of her therapeutic methods for
treating him. She treated him for eight months; their relationship became romantic in
January 2015, shortly after she left for a new job. At their final meeting before Sandra
left Waupun, Paul tried to kiss her. She says that she rebuffed him at first, but less than
a week later, he sent her a letter seeking a romantic relationship, and she accepted. They
corresponded by mail and phone, with Sandra often using a fake name. By the end of
February, they had confessed their mutual love and engaged in phone sex. In May,
Sandra accepted Paul’s proposal to enter a “Hebrew marriage covenant.”
Sandra and Paul were romantically involved when she rejoined the Department
several months later, in July 2015. She worked as a psychologist implementing the
Prison Rape Elimination Act, 34 U.S.C. §§ 30301–09. Her duties included training staff
about the Act, including its prohibition on inmate-staff relationships. In addition to that
prohibition, the Department has its own anti-fraternization policy. It forbids employees
from “[h]aving personal contacts or being in a social or physical relationship” with
inmates, including “dating” and “corresponding or communicating.” Prohibited
conduct also includes “conversations or correspondence which suggests a romantic or
sexual relationship.” Violations can lead to discharge. On her first day, Sandra sought
an exemption from the policy, describing her relationship with Paul as “professional.”
She withheld that they were in love and planned to marry. Sandra’s supervisor did not
accept the request; nonetheless, she carried on with the romance.
A few months later, an administrator at the Department, Catherine Jess, caught
wind of the affair and launched an investigation. Sandra admitted that she and Paul
were in “a courtship.” A search of Paul’s prison cell revealed that she had sent him
letters and photos with romantic and sexual content, and phone logs and recordings of
their calls showed that they talked regularly, often about their romantic and sexual
desires. Jess concluded that Sandra was knowingly pursuing an unauthorized romantic
relationship with a prisoner in violation of the anti-fraternization policy and in conflict
with her job duties. Such relationships, Jess tells us, threaten security: Employees have
access to confidential information about security measures that they could (wittingly or
unwittingly) disclose to their inmate paramours; inmate-therapist relationships can
No. 20-3112 Page 3
impair prison-therapy programs; and, in Sandra’s case, the relationship undermined
her ability to be a credible trainer on the Prison Rape Elimination Act. As a result, Jess
fired Sandra.
The Department of Corrections also reported Sandra to Wisconsin’s licensing
authority, the Department of Safety and Professional Services. That authority began its
own investigation into whether she had violated Wis. Admin. Code § PSY 5.01(14),
which prohibits psychologists from having sexual or romantic encounters with clients
within two years of a professional relationship. She told an investigator that she had
provided “a form of therapy” to Paul before starting their romantic and sexual
relationship. But she did not believe that she had breached the bar on non-professional
relationships because she and Paul never had physical sex, Paul was not mentally ill,
and, in her view, he was never her mental-health client. At her interview, Sandra was
not permitted to bring a witness, she did not have counsel, and she had no advance
access to documents. At the end of the interview, the investigator explained that, based
on her admissions, Sandra likely faced a two-year license suspension.
The licensing authority’s prosecuting attorney decided that Sandra’s actions
warranted discipline. The attorney proposed that, in lieu of formal charges and a public
hearing, Sandra could stipulate to wrongdoing and accept a one-year suspension of her
psychologist’s license. The proposed stipulation stated that Paul was Sandra’s client,
that she treated him shortly before beginning their romantic relationship, that the
relationship was unprofessional and violated § PSY 5.01(14), and that Sandra waived
her rights to a hearing and an appeal. Sandra was informed of her right to consult an
attorney before signing the stipulation. She declined to do so, believing that she lacked
the money to hire one. She signed the stipulation but wrote that she felt “forced into this
impossible position,” given that her only other option was a hearing that she thought
would be unfair and a waste of time and money. The licensing authority accepted the
stipulation and suspended Sandra’s license for one year. (Another complaint from the
Department of Corrections to the licensing authority about Sandra, filed five months
later after Paul’s first request to marry her, was closed for lack of evidence.)
In this lawsuit, Sandra has sued employees of the Department of Corrections and
the licensing authority, raising three sets of claims under 42 U.S.C. § 1983. First, she
contends that they violated her Fourteenth Amendment right to intimate association by
firing her and suspending her license. Second, she maintains that the licensing authority
suspended her license without due process by denying her an attorney at her interview,
by not giving her advance access to the evidence against her, and by pressuring her into
No. 20-3112 Page 4
signing the stipulation. Third, she asserts that the Department’s employees who lodged
complaints about her with the licensing authority retaliated against her for exercising
her constitutional right of association.
The district court granted the defendants’ motions for summary judgment. It
concluded Sandra’s firing and suspension were reasonably related to legitimate
interests in security, rehabilitation, and patient protection. It also ruled that she received
sufficient due process during the suspension proceedings. And, it continued, Sandra
presented no evidence that the Department employees who filed complaints with the
licensing authority acted with any forbidden motive. Finally, all the defendants were
entitled to qualified immunity (an issue that we do not need to reach).
On appeal, Sandra first argues that the district court wrongly granted summary
judgment on her claim that her firing was unconstitutional. The parties stipulate that,
under the substantive component of the due process clause of the Fourteenth
Amendment, Sandra and Paul had a fundamental right to associate intimately.
See Roberts v. United States Jaycees, 468 U.S. 609, 617–620 (1984); Christensen v. Cty. of
Boone, Ill., 483 F.3d 454, 462–463 (7th Cir. 2007). But that right is “subject to substantial
restrictions as a result of incarceration.” Nigl, 940 F.3d at 333 (quoting Turner v. Safley,
482 U.S. 78, 95 (1987)). Such restrictions are valid if they are “reasonably related to
legitimate penological interests.” Turner, 482 U.S. at 89. That assessment turns on (1)
whether the restriction and its proffered penological interest are rationally connected;
(2) whether other means of exercising the right remain open; (3) the impact on the
prison of accommodating the right; and (4) whether the prison’s action was an
exaggerated response because it had obvious, easy, and low-cost alternatives for
accommodating the plaintiff’s right and the prison’s interests. Nigl, 940 F.3d at 333
(citing Turner, 482 U.S. at 89–91). Prison officials receive “substantial deference” in
“defining the legitimate goals of a corrections system and . . . determining the most
appropriate means to accomplish them.” Id. at 334.
The first factor indisputably favors the Department. It put forth a legitimate
penological goal—prison security. And the Department rationally connected that goal
to Sandra’s firing for violating the anti-fraternization policy. As the Department
plausibly tells us, non-enforcement of the policy risks leaks of confidential information,
ineffective therapy, and a weakened workforce. See Keeney v. Heath, 57 F.3d 579, 581 (7th
Cir. 1995). Sandra faults the Department for not presenting more evidence of its security
rationale, but once it provided some evidence, the burden shifted to her to contradict it,
and she did not. See Mays v. Springborn, 575 F.3d 643, 647 (7th Cir. 2009). Instead, she
No. 20-3112 Page 5
argued that the Department has at times, in its discretion, granted exemptions for other
inmate-staff relationships. But it is undisputed that in those cases, unlike Sandra’s, the
recipients met outside of the correctional system, and thus those relationships did not
create a risk of prisoners trying to “romance” staff to gain information or preferential
treatment.
Defendants can prevail based on the first Turner factor alone, see Riker v. Lemmon,
798 F.3d 546, 553 (7th Cir. 2015), but the others fully favor the Department. The anti-
fraternization policy did not pose, as Sandra says, an “absolute barrier” to a relationship
with Paul. Their relationship continued after her job ended, and they are now married.
See Keeney, 57 F.3d at 581. On the third factor, Sandra argues that the Department could
simply assign her and Paul to different facilities. But that would not negate the risk of
leaked confidential information (because Sandra’s job required her to visit all facilities)
or ensure effective therapy (because inmates might resist therapy if therapists could
woo their patients). Last, under the fourth factor, Sandra mistakenly contends that,
because she sought an exemption, her firing was an “exaggerated response.” But she
broke the rules: her exemption request, which was never granted, did not by itself
authorize the relationship and, in her request, Sandra lied by describing her relationship
as “professional.” Further, in Sandra’s first suit against the Department, we recounted
the couple’s “pattern of rule-breaking and deception” and said: “Taking steps to
prevent this kind of conduct from recurring in the future is rationally related to the
defendants’ interests in maintaining a secure prison capable of . . . promoting respect for
its rules.” Nigl, 940 F.3d at 334–35. Accordingly, the discharge was constitutional.
Sandra raises another argument about her discharge. She contends that, in firing
her, the Department did not follow state regulations, which she believes required first
applying progressive discipline or identifying disciplinary comparators. See WIS. STAT.
§ 230.34(1)(a) (vers. eff. Jul. 14, 2015 to Jun. 30, 2016); Purtue v. Wisconsin Dep't of Corr.,
963 F.3d 598, 601 (7th Cir. 2020). But a violation of state law does not violate the federal
constitution. See Wells v. Caudill, 967 F.3d 598, 602 (7th Cir. 2020). And, in any event, as a
project employee without permanent status, the progressive discipline protections did
not apply to her. § 230.34(1)(a) (employees “with permanent status” can only be
removed for just cause). Even the version that she relies on did not require progressive
discipline before firing her. § 230.34(1)(a) (vers. eff. Jan. 25, 2014 to Jul. 13, 2015).
Sandra has one final claim against the Department. She contends that it lodged
complaints about her with the licensing authority to retaliate against her for exercising
her constitutional right of association. The district court correctly entered summary
No. 20-3112 Page 6
judgment on this claim because, at the time it reported Sandra, the Department had
ample reason to believe that she violated § PSY 5.01(14). So its actions were reasonably
related to the legitimate government interest in enforcing that regulation. Sandra’s
unsupported speculation about a retaliatory motive was insufficient to survive
summary judgment. See Lauth v. Covance, Inc., 863 F.3d 708, 717 (7th Cir. 2017).
We now turn to Sandra’s claims against the licensing authority. She first argues
summary judgment was improper on her claim that it violated her right to intimate
association, because, in her view, Paul was never her client, so it had no legitimate
reason to discipline her. But as Sandra concedes, the goal of the rule barring
psychologists from dating clients within two years of treatment is to promote the state’s
legitimate interest in “protect[ing] the health, safety or welfare of clients.” Nigl, 940 F.3d
at 331 (noting the purpose of § PSY 5.01(14)). Because the rule’s goal is not to block
intimate relations outright, its enforcement needs only to have a rational basis.
See Zablocki v. Redhail, 434 U.S. 374, 386 (1978); Montgomery v. Stefaniak, 410 F.3d 933, 938
(7th Cir. 2005). And here the licensing authority had ample rationale to enforce its rule.
Despite Sandra’s protestations now, when it suspended her the authority had abundant
evidence that Paul had been her client within two years of their romance. It had her
treatment notes, her admission that she provided him “a form of therapy,” her
stipulation that she had treated him, and her confession of their mutual love. Based on
this evidence, and the authority’s legitimate regulation prohibiting romances within
two years of therapy, Sandra’s suspension was rational and thus constitutional.
Finally, Sandra revisits her claim about due process. She contends that the
licensing authority violated her right to due process by coercing her into signing the
stipulation. The coercion, she says, arose from her lack of an attorney and a chance to
review the evidence, and the investigator’s remarks that her actions would likely result
in a two-year suspension. But the district court correctly ruled that these facts do not
suggest a due process violation. First, the licensing authority never denied her access to
counsel; rather, she decided not to retain a lawyer because of the cost. Sandra replies
that, when the investigator told her not to bring any witnesses to the interview, she
thought that was a denial of counsel. Even if her interpretation were reasonable, she
had no right to counsel, or to review the evidence against her, during a non-
adjudicatory fact-finding interview; if she wanted to contest the investigator’s findings,
Sandra could have asked for a civil hearing, an opportunity that supplies due process.
See Fleury v. Clayton, 847 F.2d 1229, 1233 (7th Cir. 1988). But she chose to forego that
opportunity. Sandra responds that she feared that a hearing would be unfair. But “if
[s]he thought that the Board would disregard the evidence, [s]he still had to make [her]
No. 20-3112 Page 7
record and obtain review in state court if [her] fears should be realized.” Id. Finally, the
investigator’s prediction of a two-year suspension is not coercion, for “an overbearing
attorney does not violate the Due Process Clause by stressing the grave consequences
that may attend failure to bargain.” Id.One brief matter remains. Sandra asks us to find that she is unable to pay the
Department’s bill of costs. But the district court had not ruled on the bill at the time that
she filed her notice of appeal, so we have no jurisdiction over the matter in this appeal.
See United States v. Bonk, 967 F.3d 643, 648–50 (7th Cir. 2020).
We have considered Sandra’s remaining arguments, and none has merit.
AFFIRMED