September 17, 2019
from the United States District Court for the Eastern
District of Wisconsin. No. 17-cv-925 - J. P. Stadtmueller,
Flaum, Rovner, and Scudder, Circuit Judges.
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.
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
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.
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.
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.
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.
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
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
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.
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
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
A. The marriage does not pose a threat to the security of the
facility or a threat to the ...