Paul Nigl v. Jon Litscher ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-1618
PAUL NIGL, et al.,
Plaintiffs-Appellants,
v.
JON LITSCHER, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 17-cv-925 — J. P. Stadtmueller, Judge.
____________________
ARGUED SEPTEMBER 17, 2019 — DECIDED OCTOBER 7, 2019
____________________
Before FLAUM, ROVNER, and SCUDDER, Circuit Judges.
FLAUM, Circuit Judge. Wisconsin Department of Correc-
tions 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 fun-
damental right to marry. The denial, however, was reasona-
bly related to legitimate penological interests. Nigl and John-
ston had engaged in a pattern of rule-breaking and deception
in furtherance of their relationship leading up to the date of
2 No. 19-1618
the marriage request, and the Psychology Examining Board
concluded that Johnston had violated rules designed to pro-
tect 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 per-
manent 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 pris-
oner within the Wisconsin Department of Corrections (“De-
partment”), where he is currently serving a 100-year bifur-
cated sentence for two counts of intoxicated homicide by use
of a vehicle. From 2001 until September 2015, Nigl was incar-
cerated at Waupun Correction Institution (“Waupon”). Plain-
tiff-appellant Dr. Sandra Johnston worked at Waupon as a
prison psychologist from April 2013 until January 2015, dur-
ing 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 pol-
icy exception request” form to her supervisor, requesting per-
mission to have contact with Nigl. Where the form asks for
1 Johnston initially admitted to kissing Nigl but later denied it.
No. 19-1618 3
the “Nature of Employee Relationship to Offender,” Johnston
checked the box marked “other” and wrote “Met at [Waupon]
approximately 04/13. Relationship [is] professional.” John-
ston 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 excep-
tion 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 Depart-
ment’s fraternization policy, which prohibits Department em-
ployees 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 reha-
bilitation” that Department employees provide inmates.
Around the same time that Nigl was transferred to Red-
granite Correctional Institution (“Redgranite”) in September
2015, the Department learned about Johnston’s relationship
with Nigl. The Department then terminated Johnston in Oc-
tober 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 re-
lationship with Nigl. Johnston noted that the details of how
they met were confidential under the Health Insurance Port-
ability 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 Depart-
ment less than twelve months earlier.
4 No. 19-1618
In ensuing investigations of Johnston’s conduct, Redgran-
ite 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 Mi-
chael 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 be-
lieved that Johnston used the alias to conceal her identity as a
former Department employee and to thwart the security pro-
tocol 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 relation-
ship 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 cli-
ent or former client within two years of the end of profes-
sional services. The Board’s rules aim to “protect the health,
safety or welfare of clients or patients.” Bar-Av v. Psychology
Examining Bd., 728 N.W.2d 722, 728 (Wis. Ct. App. 2007). As a
result of the Board’s findings, it entered an order in August
No. 19-1618 5
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. Depart-
ment 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 rela-
tionship.
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 mar-
riage;
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 in-
mate;
E. The proposed spouse has never been con-
victed in any criminal activity with the in-
mate; and
F. The proposed spouse has been on the in-
mate’s visiting list for a minimum of one
year or is able to demonstrate a longstanding
relationship with the proposed spouse.
6 No. 19-1618
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 mar-
riage poses a threat to the security of the facility
or a threat to the safety of the public, or threat-
ens 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 recommen-
dation because of Johnston and Nigl’s violations of Depart-
ment rules in furtherance of their relationship; Johnston’s vi-
olations of the code of professional conduct for psychologists
and, relatedly, Meisner’s concern that Johnston may have vic-
timized Nigl; Meisner’s belief that the relationship was
grounded in deception and rule-breaking; Nigl and John-
ston’s failure to demonstrate a longstanding relationship; and
the threat the marriage would pose to the security of the facil-
ity and other penological interests. Meisner made the final de-
cision to deny Nigl’s request to marry Johnston in January
2017.
No. 19-1618 7
Nigl submitted two inmate grievances about the marriage
denial in early 2017. The inmate complaint examiner recom-
mended denial of the grievances, finding that the staff acted
in accordance with Department policy. Nigl appealed the de-
nials 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 griev-
ances 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 rea-
sons 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’ 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
four-factor test the Supreme Court set forth in Turner v. Safley,
482 U.S. 78 (1987) when evaluating the plaintiffs’ right to
marry claim because it relied solely on the first factor and ig-
nored the others. The plaintiffs also argue that the district
8 No. 19-1618
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 peno-
logical interests in institutional security and inmate rehabili-
tation.
II. Discussion
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
Prisoners retain, under the Fourteenth Amendment, a con-
stitutional right to marry, which “like many other rights, is
subject to substantial restrictions as a result of incarceration.”
Turner v. Safley, 482 U.S. 78, 95 (1987). A prison policy decision
that impinges on an inmate’s constitutional rights does not vi-
olate the Constitution if the decision “is reasonably related to
legitimate penological interests.” Id. at 89; see also Siddiqi v.
Leak, 880 F.2d 904, 909 (7th Cir. 1989) (Turner test applies to
No. 19-1618 9
prison policy decisions as well as prison regulations).2 The Su-
preme Court has set forth four factors for the Court to con-
sider in making this determination:
(1) whether there was a rational connection be-
tween the decision to deny the marriage re-
quest and the legitimate penological interest
put forward to justify the denial;
(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 in-
mates; 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 exag-
gerated response to prison concerns.
Turner, 482 U.S. at 89–91. The defendants argue that the case
can be disposed of under the first factor whereas the plaintiffs
argue that the Court must consider the first and fourth fac-
tors.3 Although “the first one can act as a threshold factor re-
gardless of which way it cuts,” Riker v. Lemmon, 798 F.3d 546,
553 (7th Cir. 2015) (citation omitted), the ultimate question re-
mains whether the defendants’ decision to deny the marriage
2 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).
3The parties agree that the defendants cannot justify their denial of
the marriage request based on the second or third factors.
10 No. 19-1618
request was reasonably related to legitimate penological in-
terests, Turner, 482 U.S. at 89.
Courts must give “substantial deference to the profes-
sional judgment of prison administrators, who bear a signifi-
cant responsibility for defining the legitimate goals of a cor-
rections system and for determining the most appropriate
means to accomplish them.” Van den Bosch v. Raemisch, 658
F.3d 778, 786 (7th Cir. 2011) (quoting Overton v. Bazzetta, 539
U.S. 126, 132 (2003)). The defendants cannot, however, “avoid
court scrutiny by reflexive, rote assertions.” Riker, 798 F.3d at
553 (citation omitted). “Although the burden of persuasion is
on the prisoner to disprove the validity of a regulation, prison
officials must still articulate their legitimate governmental in-
terest in the regulation and provide some evidence support-
ing their concern.” Id. (citation and internal 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 legiti-
mate penological interests in preserving the security of the
prison, inducing compliance with and promoting respect for
the prison’s rules governing inmate contacts, and rehabilitat-
ing Nigl. The defendants have pointed to several instances of
misconduct by Johnston and Nigl in furtherance of their rela-
tionship: 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 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
No. 19-1618 11
merely “professional” and stating that she was only a
“friend” of Nigl on fraternization policy exception and visita-
tion 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
the date of the marriage request. As recently as one month
before the marriage request, Johnston falsely identified her-
self as merely Nigl’s “friend,” and she again identified herself
as merely a friend on a visitation request form after Nigl sub-
mitted the marriage request. Considering these continued
failures to disclose the true nature of their relationship in the
context of the previous uses of an alias and other forms of de-
ception, the defendants could have reasonably concluded that
the couple’s pattern of rule-breaking and deception was on-
going through the time of the marriage request.
Taking steps to prevent this kind of conduct from recur-
ring in the future is rationally related to the defendants’ inter-
ests in maintaining a secure prison capable of effectively mon-
itoring inmate contacts and in promoting respect for its rules.
Requiring the defendants to grant the plaintiffs’ marriage re-
quest at a time when the plaintiffs were engaged in an ongo-
ing pattern of rule-breaking and deception in furtherance of
their relationship would eliminate or reduce the “sting” from
the Department’s sanction for the plaintiffs’ misconduct. Cf.
Martin v. Snyder, 329 F.3d 919, 922 (7th Cir. 2003) (“Re-
strictions on visitation, though not enough to justify prohibit-
ing marriage, may well justify deferment, so that the sanction
for misconduct will have some sting.”).
12 No. 19-1618
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 vio-
lated rules designed to protect psychologists’ clients and pa-
tients.4 The denial of the marriage request was therefore ra-
tionally related to the defendants’ goal of protecting Nigl
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 de-
fendants 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, and the
defendants are entitled to “substantial deference” in deter-
mining the most effective means to accomplish their legiti-
mate penological goals, Overton, 539 U.S. at 132. The plaintiffs
have not made any showing that either one of their proposed
4 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 safe-
guards medical information. The plaintiffs nevertheless dispute the char-
acterization of Nigl as Johnston’s former “patient.” Regardless of how the
relationship is labeled, the Board concluded that Johnston, a licensed psy-
chologist, violated rules designed to protect clients and patients in con-
nection with her relationship with Nigl.
No. 19-1618 13
alternative means was “obvious [and] easy,” Turner, 482 U.S.
at 90, or could have been substituted at only de minimis cost
to the defendants’ pursuit of their legitimate penological
goals, id. at 90–91; see also Overton, 539 U.S. at 132 (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 “fundamen-
tally misconceive[d] the issue before the court” by resting jus-
tifications 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 de-
fendants 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 in-
carceration. 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 (2006); Overton, 539 U.S.
at 134, “Turner does not say that every delay violates the Con-
stitution,” Martin, 329 F.3d at 922. Under the circumstances
14 No. 19-1618
relevant to the one-time denial of the marriage request in Jan-
uary 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 fur-
therance of their relationship. Turner, 482 U.S. at 89–90.5
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the
district court.
5
The Court need not reach, and does not address, issues of qualified
immunity, standing, or mootness.