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Nigl v. Litscher

United States Court of Appeals, Seventh Circuit

October 7, 2019

Paul Nigl, et al., Plaintiffs-Appellants,
Jon Litscher, et al., Defendants-Appellees.

          Argued September 17, 2019

          Appeal from the United States District Court for the Eastern District of Wisconsin. No. 17-cv-925 - J. P. Stadtmueller, Judge.

          Before Flaum, Rovner, and Scudder, Circuit Judges.

          Flaum, Circuit Judge.

         Wisconsin Department of Corrections 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 fundamental right to marry. The denial, however, was reasonably related to legitimate penological interests. Nigl and Johnston had engaged in a pattern of rule-breaking and deception in furtherance of their relationship leading up to the date of the marriage request, and the Psychology Examining Board concluded that Johnston had violated rules designed to protect 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 permanent 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 prisoner within the Wisconsin Department of Corrections ("Department"), where he is currently serving a 100-year bifurcated sentence for two counts of intoxicated homicide by use of a vehicle. From 2001 until September 2015, Nigl was incarcerated at Waupun Correction Institution ("Waupon"). Plaintiff-appellant Dr. Sandra Johnston worked at Waupon as a prison psychologist from April 2013 until January 2015, during 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 policy exception request" form to her supervisor, requesting permission to have contact with Nigl. Where the form asks for the "Nature of Employee Relationship to Offender/' Johnston checked the box marked "other" and wrote "Met at [Waupon] approximately 04/13. Relationship [is] professional." Johnston 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 exception 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 Department's fraternization policy, which prohibits Department employees 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 rehabilitation" 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 October 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 relationship with Nigl. Johnston noted that the details of how they met were confidential under the Health Insurance Portability 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 Department less than twelve months earlier.

         In ensuing investigations of Johnston's conduct, Redgranite 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 Michael Meisner, warden of Red granite, 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 believed that Johnston used the alias to conceal her identity as a former Department employee and to thwart the security protocol 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 relationship 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 client or former client within two years of the end of professional 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 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. Department 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 relationship.

         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 ...

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