United States District Court, E.D. Wisconsin
PAUL M. NIGL and SANDRA JOHNSTON, Plaintiffs,
JON LITSCHER, MICHAEL MEISNER, SARA HUNGERFORD, and ZACHARY SCHROEDER, Defendants.
Stadtmueller U.S. District Judge
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
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.
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).
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.
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.
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. 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.
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.
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.
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.
Defendant Jon Litscher served as the secretary of Corrections
from March 2016 until his retirement in June 2018.
Nigl and Johnston's Relationship
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.
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.
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).
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”).
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
The Employee/PREA Investigation
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.
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).
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
The DSPS Investigation
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.
Requests for ...