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Flynn v. Burns

United States District Court, E.D. Wisconsin

January 29, 2018



          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]


         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 (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] correspondence, the Court must resolve that dispute in Flynn's favor at this juncture.

         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 Muenchow, about Flynn's complaint. Burns provided him with a copy of the no-contact order. Flynn's complaint was dismissed by Muenchow because the no-contact order was “consistent with the need to protect the public.” (Docket #31-1 at 2). Muenchow further stated that Inmate Flynn must realize that the matter between himself and the mother of his child is something of which the ICRS will not nor cannot intercede upon, referencing any “ordered” communication or prohibition of same. That is a legal matter that cannot be determined here.

Id. Finally, Muenchow noted that Burns continued to investigate the matter and the no-contact order could be lifted if warranted after that investigation. See Id. The warden affirmed Muenchow's disposition.

         Flynn has several complaints about the adequacy of the grievance process. First, he notes that Muenchow told him three times that Burns was investigating the matter. As a consequence, Flynn continued to correspond with Burns about his investigatory efforts. Yet Burns now tells the Court that Muenchow was mistaken and that he did not perform any investigation at any time. Second, says Flynn, the ICE dismissed his complaint because they have “a clanked policy to affirm the decisions of security supervisors.” (Docket #51 at 20).

         Third, Flynn complains of additional alleged misinformation from Muenchow about the scope of ICRS review. From Muenchow's statement that ICRS would not intervene in the parent-parent dispute, Flynn thought Muenchow was stating that his department did not have the authority to review a no-contact order. However, Flynn did not want to leave this to his own surmise, so he wrote Muenchow and asked him to expound on his statement. Muenchow responded, “We will not second-guess security decision or question a judge's order.” (Docket #45 at 87). This complaint was appealed to the Office of the DOC Secretary, where it was ultimately dismissed as Flynn did not provide any additional evidence to recommend overturning the institution's decision.

         On July 10, Flynn wrote Burns another interview request explaining that he had just learned that S.W. was currently living with his niece. Flynn asked Burns if the no-contact restriction could be removed so that he could contact his daughter at his niece's residence. Burns never responded to this request.

         On July 31, Flynn wrote Burns and alleged that it was possible that the complaining caller was not Williams but was instead the cousin of his daughter's adult boyfriend. Flynn asked Burns to contact Williams and confirm that she had actually made the call. On August 9, Burns responded, stating that “[t]he no contact was done correctly and will not be lifted.” Id. at 32.

         On October 20, Flynn appeared by telephone in Milwaukee County Circuit Court in the case of Natasha Williams v. Darryl Flynn, Case No. 2001PA2458, for a hearing on his June 10 motion. Williams was present and objected when Flynn asked the court to order that he be allowed to write S.W. from the prison. The court held the motion open until it could determine what S.W. wanted. The court appointed a guardian ad litem to represent the child and continued the hearing to February 7, 2017.

         On December 29, 2016, Flynn sent an open records request to Burns asking Burns to furnish him with the results of the investigation into the no-contact order. Flynn requested copies of all reports, notes, and evidence collected. He also asked Burns if there was any way to have the no-contact order removed so that he could begin writing to his daughter. Burns never responded to this request and never sent any of the materials that Flynn demanded.

         2.5 The State Court Order and the Second Grievance

         On February 7, 2017, at the continued state court hearing, there was some consensus between the parties that phone calls and letters to S.W. were acceptable as long as Flynn did not mention Williams. The court issued a written order directing that Flynn be allowed to mail S.W. one letter per month to Williams's house, and Williams could read it before giving it to S.W. if she wanted. The court also ordered Flynn be allowed at least one telephone call a month with S.W. Id. at 51-55.

         On February 13, Flynn sent a copy of the court order to his social worker and asked her to place it in his social services file. The records office responded and explained that they would not place the order in Flynn's file because it was not generated by the DOC.

         Flynn then sent Burns an interview request dated February 16, stating that he now had a court order allowing him contact with S.W. and asking that the prison's order be rescinded. Attached to that form was a copy of the state court order. Nevertheless, Burns did not respond and the no-contact order was not immediately lifted.

         Burns claims that he never received a copy of the order, or that he never actually saw it even if it was attached to the February 16 correspondence. Burns says that if he had received the court order, he would have worked to lift the no-contact order at that time. Flynn counters that Burns did receive it and ignored it, based on his experience that interview requests do not get lost in transit. See supra note 5.

         Moreover, Flynn contends that on March 3, Burns came to see him at his cell. Burns was holding the February 16 correspondence. Burns told Flynn that he had reviewed Flynn's numerous interview requests, though he did not mention the state court's order. Burns stated, “You keep writing me all these requests, and I'm not answering because nothing is going to change.” Id. ¶ 38. Burns warned him to stop asking for the no-contact order to be lifted. Flynn believes that because Burns was holding the February 16 request, he must have read the attached court order and willfully ignored it.[6]

         That same day, Flynn wrote Burns a final interview request thanking him for the visit and explaining that he would follow the order not to bother him again. However, Flynn also included in the correspondence an open records request seeking a copy of the February 16, 2017 interview request. On March 8, Burns answered that “[t]his matter is closed as I stated in our conversation.” Id. at 38. He did not send the requested copy.

         On March 5, Flynn wrote the Waupun warden about Burns' visit and asked if there was any way that Flynn could have the no-contact order removed. Flynn explained that writing is the only way by which he could communicate with his daughter. The warden never responded.

         On March 14, Flynn wrote another open records request, this time to the prison investigation supervisor, asking for all correspondence between Waupun and Williams prior to the no-contact order being issued, as well as all evidence that was obtained during the investigation leading to the issuance of the no-contact order. The investigation supervisor never responded to this request.

         On March 21, Flynn wrote to the investigation supervisor again and asked when he would be able to contact his daughter again. He further questioned whether the prison's no-contact order trumped the court's order. The investigation supervisor replied, “What no contact order are you referring to?” Id. at 61. On March 25, Flynn sent the investigation supervisor a copy of the no-contact order and a copy of the state court order. On April 3, Meli responded to this request and stated: “You can have contact with the child-If the child wants to have contact with you. It appears the child's guardian has a no contact order. You will have to contact the court.” Id. at 63.

         On June 12, Flynn filed a second ICRS complaint, complaining that Burns was refusing to remove the no-contact order after he had sent Burns a copy of the state court order. Muenchow asked Flynn to send him Meli's response to the March 25 interview request, but Flynn did not do so because, as he stated, he normally does not keep requests once he is finished reading them. Id. at 85.

         Burns contends that the first the institution heard of the state court order was in Flynn's June 2017 inmate complaint. At that time, Burns spoke with Meli, since he had never had to modify a no-contact order before and he wanted to ensure that he was doing things correctly in lifting the no-contact order. Based on the court's decision, Meli ...

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