United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Court
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
STANDARD OF REVIEW
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).
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.
Flynn's Contact With His Daughter and Her Mother
Williams (“Williams”) is the mother of S.W., one
of Flynn's daughters. 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).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
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.
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.
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.
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.
Burns' Contact With Williams and the No-Contact
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. 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
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.
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).
Flynn Challenges the No-Contact Order
receiving the no-contact order, Flynn has submitted nineteen
interview request forms to different staff members concerning
the order. correspondence, the Court must resolve
that dispute in Flynn's favor at this juncture.
wrote eight such requests to Burns between May 28, 2016 and
March 3, 2017. Burns only responded to three.
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.
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.
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.
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).
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.
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.
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.
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.
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.
The State Court Order and the Second Grievance
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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 ...