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Nigl v. Litscher

United States District Court, E.D. Wisconsin

March 29, 2019

PAUL M. NIGL and SANDRA JOHNSTON, Plaintiffs,
v.
JON LITSCHER, MICHAEL MEISNER, SARA HUNGERFORD, and ZACHARY SCHROEDER, Defendants.

          ORDER

          J. P. Stadtmueller U.S. District Judge

         1. INTRODUCTION

         Plaintiffs Paul M. Nigl (“Nigl”), a prisoner, and Sandra Johnston (“Johnston”), his fiancée, filed a pro se complaint under 42 U.S.C. § 1983, alleging their civil rights were violated. (Docket #1). Specifically, the Plaintiffs allege that the Defendants, officers of the prison where Nigl was previously housed and the Wisconsin Department of Corrections secretary, violated Plaintiffs' Fourteenth Amendment right to form an intimate relationship by not allowing them to marry. Plaintiffs also allege a violation of their Fourteenth Amendment right to equal protection because Defendants have denied them visitation privileges but have, according to Plaintiffs, permitted visitation for similarly-situated persons.

         The parties have filed cross-motions for summary judgment. (Plaintiffs' Motion, Docket #46; Defendants' Motion, Docket #51). Those motions are now fully briefed and ripe for adjudication. See (Docket #46- #59, #65-#68, #72-#75). For the reasons explained below, Defendants' motion will be granted, Plaintiffs' motion will be denied as moot, and this case will be dismissed.

         2. STANDARD OF REVIEW

         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).

         3. RELEVANT FACTS

         The following facts are material to the disposition of Defendants' motion for summary judgment. They are drawn from the parties' factual briefing, (Docket #48-#50, #52-#58, #66-#68, #72-#73, #75), unless otherwise noted. The Court will discuss the parties' principal factual disputes as appropriate.

         3.1 The Parties

         Nigl has been a prisoner within the Wisconsin Department of Corrections (“Corrections”) since 2001. He is serving a 100-year bifurcated sentence for two counts of intoxicated homicide by use of a vehicle. From the time he was first incarcerated until September 2015, he was housed at Waupun Correctional Institution (“Waupun”). Between September 2015 and June 2018, he was housed at Redgranite Correctional Institution (“Redgranite”). It was during his incarceration at Redgranite that Johnston, his fiancée, sought to be placed on his visitor list and the couple requested permission to be married. Since June 2018, he has been housed at Fox Lake Correctional Institution.

         Johnston is a former Corrections employee. From April 2013 until January 2015, Johnston worked as a psychologist at Waupun, where she met Nigl. She provided psychological services to Nigl and had numerous clinical contacts with him while working at Waupun.[1] On January 10, 2015, Johnston left her job at Waupun and began to work at the Wisconsin Resource Center, which is not a Corrections facility. Her hiatus from employment with Corrections lasted about six months. On or around July 13, 2015, Johnston returned to employment with Corrections, this time as a psychologist in Corrections' central office in Madison. Her position in the central office was terminated in October 2015, for reasons explained below.

         Defendant Michael Meisner (“Meisner”) has been the warden of Redgranite since March 2014. Meisner was the final decisionmaker who denied Johnston's requests to be placed on Nigl's approved visitor list at Redgranite and denied Nigl and Johnston's request to marry.

         Defendant Sara Hungerford (“Hungerford”) is a licensed social worker. She worked for Corrections from 2009 through 2017, when she retired from state service. She was a social worker at Redgranite from April 2015 through June 2017. She reviewed and ultimately recommended denial of Johnston's requests to be placed on Nigl's approved visitor list and Nigl and Johnston's request to marry.

         Defendant Zachary Schroeder has been a unit manager at Redgranite since February 2016. He was Hungerford's supervisor and he conferred with her in the decision to recommend denial of Johnston's requests to be placed on Nigl's approved visitor list and Nigl and Johnston's request to marry.

         Finally, Defendant Jon Litscher served as the secretary of Corrections from March 2016 until his retirement in June 2018.

         3.2 Nigl and Johnston's Relationship

          On January 12, 2015, days after Johnston left her employment at Waupun, Nigl asked his brother to seek out Johnston's contact information. Nigl began communicating with Johnston by letter, and then also by phone and email, on a regular basis. In April 2015, Nigl asked Johnston to marry him and she said yes.

         As noted above, Johnston returned to employment with Corrections in July 2015. On her first day of work at the central office in Madison, she submitted a “fraternization policy exception request” to her supervisor, Gary Ankarlo (“Ankarlo”), requesting permission to have contact with Nigl. On the form, under the section titled, “Nature of Employee Relationship to Offender, ” Johnston checked the box marked “other” and wrote, “Met at WCI approximately 04/13. Relationship à professional.” (Docket #55-1 at 1). Johnston did not disclose that she was engaged in a romantic relationship with Nigl. Ankarlo refused to process the fraternization request as he was supposed to, for reasons not entirely clear from the record, and he returned the form to Johnston. Nigl and Johnston continued to have contact anyway.

         In September 2015, Corrections learned from an anonymous survey submission that Johnston had a relationship with an inmate. Johnston was placed on administrative leave and then, on October 29, 2015, her position was terminated “due to allegations that have been made against you pertaining to violation of the Department's fraternization policy.” (Docket #55-3 at 2).

         Two investigations ensued. First, Corrections undertook an investigation to determine whether Johnston had violated department rules-such as Executive Directive #16, which prohibits staff from having unapproved relationships with offenders-and whether she had violated the Prison Rape Elimination Act by engaging in a relationship with a patient inmate (the “Employee/PREA Investigation”).

         After this investigation commenced, Meisner, the warden of Redgranite, contacted the Wisconsin Department of Safety and Professional Services (“DSPS”) to complain to the Wisconsin Psychology Examining Board about Johnston's alleged relationship with Nigl. Meisner testifies by declaration that he felt he had a duty to report what he believed was a significant professional ethical violation. DSPS undertook its own investigation (the “DSPS Investigation”).

         3.3 The Employee/PREA Investigation

         The Employee/PREA investigation began in early November 2015 at Redgranite, as that was where Nigl was housed at the time. During the investigation, Redgranite staff searched Nigl's cell and found numerous cards, letters, and photographs from Johnston. Some of the photos depicted Johnston in various stages of undress and in sexually provocative poses. Johnston sent some of these items under the alias “Cassie Fox” or “Cass.” She had also set up an account with the prison's phone system under the name Cassie Fox.

         Meisner testifies that because of Johnston's status as a current employee of Corrections, these items were considered contraband. He also says that he concluded Johnston's use of an alias was done with the intent of concealing her identity as a former Corrections employee and demonstrated her willingness and ability to thwart security protocol of the institution. The Plaintiffs insist that Johnston sent these items during the period when she was not employed by Corrections. See (Docket #73 at 13).

         On or around December 7, 2015, the Employee/PREA Investigation concluded. The allegation that Johnston was in a relationship with Nigl was determined to be substantiated. The question of whether Johnston had violated the PREA was not substantiated, based on inconclusive evidence as to whether the couples' intimate relationship began while Johnston was employed at Waupun.

         3.4 The DSPS Investigation

         The DSPS conducted its own investigation, which culminated in an order from the Psychology Examining Board dated August 25, 2016. (Docket #52-7 at 2-10). That order begins with findings of fact learned in the investigation. Id. at 1. According to the order, Johnston admitted to a DSPS investigator that Nigl had kissed her on her last day at Waupun, but she did not report it. Id. at 4. She also admitted that she had at least one sexual fantasy about Nigl before leaving Waupun. Id. Johnston and Nigl now testify that they did not kiss on that day; they only hugged. (Docket #68 at 1). DSPS found that Johnston engaged in unprofessional conduct and was subject to discipline under state law. Id. at 4-5. Her license was suspended for one year. Id. at 5.

         3.5 Requests for ...


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