Clarence M. Easterling v. Michael Thurmer, et al
Filed opinion of the court PER CURIAM. AFFIRMED. Joel M. Flaum, Circuit Judge; Kenneth F. Ripple, Circuit Judge and Ilana Diamond Rovner, Circuit Judge. [6894445-1]  [17-1581]
United States Court of Appeals
For the Seventh Circuit
CLARENCE M. EASTERLING,
MICHAEL THURMER, et al.,
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:14‐cv‐01392‐PP — Pamela Pepper, Judge.
SUBMITTED OCTOBER 18, 2017* — DECIDED JANUARY 5, 2018
Before FLAUM, RIPPLE, and ROVNER, Circuit Judges.
PER CURIAM. Clarence Easterling, a Wisconsin inmate,
brought this action against correctional officials under
* We have agreed to decide the case without oral argument because the
briefs and record adequately present the facts and legal arguments, and
oral argument would not significantly aid the court. Fed. R. App. P.
42 U.S.C. § 1983, contending that they violated his constitu‐
tional rights to due process of law and freedom of association
by denying him visits with his daughter in 2004 and 2013.
With respect to the claims based on 2004 events, the district
court dismissed on the pleadings. It ruled that they were time‐
barred. With respect to the claims based on 2013 events, it
later entered summary judgment for the defendants, conclud‐
ing that other defenses blocked that claim.
The district court correctly ruled that Mr. Easterling’s
claims arising out of actions taken in 2004 were barred by the
statute of limitations. The remaining defendants permissibly
denied him visits in 2013 because he did not use the correct
procedure to request them. We also have considered Mr. East‐
erling’s other contentions, but none has merit. The judgment
of the district court is therefore affirmed.
For the claims dismissed as untimely, we rely on facts al‐
leged in Mr. Easterling’s complaint. See Collins v. Vill. of Pala‐
tine, 875 F.3d 839, 842 (7th Cir. 2017). For the remaining claims,
we view the entire record in the light most favorable to
Mr. Easterling. See Murphy v. Rychlowski, 868 F.3d 561, 565 (7th
Mr. Easterling was convicted in 1998 of sexually assaulting
a minor female and sentenced to probation. In 2001, just be‐
fore he was sentenced to twenty‐five years in prison for armed
robbery,1 his daughter, A.N., was born. He and A.N.’s mother
share joint custody of her. Mr. Easterling is currently impris‐
oned at the Wisconsin Secure Program Facility, where he
wants A.N. to visit him.
In Wisconsin, a minor child can visit an inmate only when
the inmate complies with a formal visitation process. Wis. Ad‐
min. Code DOC § 309.08(1)(b) (2017). According to a Division
of Adult Institutions (“DAI”) policy, the inmate must send a
questionnaire (which solicits the visitor’s consent) to the mi‐
nor’s legal guardian, who must complete and return it to the
prison.2 The warden then has discretion to deny visits if,
among other reasons, the warden has “reasonable grounds”
to believe that “the inmate’s offense history indicates there
may be a problem with the proposed visitation” or if “the pro‐
posed visitor may be subjected to victimization.” Id.
§ 309.08(4)(f)–(g). Upon denial, which is effective for six
months unless otherwise noted, the inmate can file a griev‐
ance challenging the decision, or the prospective visitor can
write a letter to the warden. Id. § 309.08(1)(f), (6).
In 2004, two years after Mr. Easterling’s sentencing, A.N.
(through her mother) sought a visit with him at the prison
where he was then housed. After receiving the completed
questionnaire, Phillip Kingston, the warden of that prison, as‐
sisted by an officer who handled inmate‐visitation requests at
that time, denied the request. They cited a requirement that
Mr. Easterling complete sex offender treatment before being
1 Mr. Easterling’s total sentence comprised twenty years’ confinement
with ten years of extended supervision; five years’ confinement with five
years of extended supervision; and two, one‐year concurrent terms.
2 DAI Policy # 309.06.01, available at R.77‐1 at 6–8.
allowed to visit with his daughter. Mr. Easterling filed an in‐
mate complaint challenging the denial, which prison officials
dismissed. Mr. Easterling then wrote to the warden in January
2005, asking “if he would ever be allowed to receive a visit
from his daughter.”3 According to Mr. Easterling, Warden
Kingston answered that visits “depended on [Easterling]”
and could occur after “completion of recommended program‐
During a prison intake assessment in 2002, a psychologist
had recommended that Easterling complete sex offender
treatment as part of his recommended programming. When
his visitation request was denied in 2005, Mr. Easterling did
not ask the warden what treatment he needed or if he could
receive it. He believed that he did not need sex offender treat‐
ment then because, he alleges, he is not a “sex offender” un‐
der Wisconsin law.5 He acknowledges now, however, that he
would complete such treatment if offered it. (He has been on
a department‐wide waiting list for the program, but only
those close to their release date receive priority.)
Nine years after he was denied visitation, Mr. Easterling
was transferred to the Wisconsin Secure Program Facility. A
month after his move, in May 2013, he sent information re‐
quests to defendants Tim Haines (the warden) and Debra Ad‐
ams (his probation and parole agent), asking them if he could
visit with his daughter. He did not use the formal visitation
3 R.21 ¶ 83.
4 Id. at ¶ 84.
5 Id. at ¶¶ 36–47, 54, 69.
process. Warden Haines and Ms. Adams responded to the re‐
quests. Warden Haines told Mr. Easterling that he could file
an inmate complaint. Mr. Easterling complied, but Warden
Haines dismissed it. Ms. Adams explained that he needed to
complete sex offender treatment, though it is not currently
available and he is not a priority candidate.
Mr. Easterling’s next step was this suit. He contends that
defendants have denied him visits with his daughter since
2004, in violation of his First Amendment right of association
and due process. The district court entered judgment on the
pleadings for the defendants associated with the events from
2004 to 2005. The court reasoned that those events fall outside
Wisconsin’s six‐year statute of limitations, applicable to § 1983
actions, see Gray v. Lacke, 885 F.2d 399, 409 (7th Cir. 1989). The
court also rejected Mr. Easterling’s arguments for extending
the time to sue. After discovery, the court entered summary
judgment for Warden Haines and Ms. Adams. It concluded
that their responses to Mr. Easterling’s “information requests”
in 2013 were not formal “denials” of visitation, so neither
Warden Haines nor Ms. Adams were liable for violating
Mr. Easterling’s rights. The court also denied Mr. Easterling’s
requests for a court‐recruited lawyer.
Mr. Easterling now maintains that the defendants have vi‐
olated his due process and First Amendment rights to associ‐
ation since 2004 by denying him visits with his daughter. He
argues that the defendants may not validly rely on his nearly
twenty‐year‐old conviction for sexual assault to justify that
Prisoners retain a limited constitutional right to intimate
association, established by the Supreme Court in Turner
v. Safley, 482 U.S. 78, 95–96 (1987), and confirmed in Overton
v. Bazzetta, 539 U.S. 126, 131–32 (2003). Turner holds that limits
on prisoners’ rights are valid if “reasonably related to legiti‐
mate penological interests.” 482 U.S. at 89. Overton suggests
that limits on family visits with a prisoner may violate that
rule if “permanent or for a [long] period” or if “applied in an
arbitrary manner.” 539 U.S. at 137. We therefore have said, al‐
beit in a nonprecedential decision, that a prisoner—even a sex
offender—who alleges that a permanent ban on visits with his
minor children has no legitimate justification states a valid
constitutional claim. See Harris v. Donahue, 175 F. App’x 746,
748 (7th Cir. 2006) (unpublished).
Today, we confirm, this time in a published opinion, that
prison officials may violate the Constitution by permanently
or arbitrarily denying an inmate visits with family members
in disregard of the factors described in Turner and Overton.6 In
6 In this respect, we join the weight of authority applying Overton v.
Bazzetta, 539 U.S. 126 (2003), and holding that, although inmates do not
have an absolute right to visitation, prison officials may not restrict an in‐
mate’s visitation with family members without balancing the inmate’s in‐
terests against legitimate penological objectives. See, e.g., Dunn v. Castro,
621 F.3d 1196, 1205 (9th Cir. 2010) (noting that “prisoners do not have an
absolute right to visitation, [because] such privileges are necessarily sub‐
ject to the prison authorities’ discretion, provided their administrative deci‐
sions are tied to legitimate penological objectives” (emphasis added));
Wirsching v. Colorado, 360 F.3d 1191, 1201 (10th Cir. 2004) (upholding de‐
nial of visitation between incarcerated sex offender and his child after ap‐
plying Turner factors).
this case, however, we need not confront whether the Depart‐
ment violated this standard, or what the precise contours of
the standard are, because the district court correctly con‐
cluded that there are valid defenses to Mr. Easterling’s claims.
First we address the statute of limitations. Mr. Easterling
contends that the district court erred by ruling that his claim
about the denial of visitation in 2004 was untimely. He sub‐
mits that the 2004 denial was a “continuing violation” and
therefore renders his suit timely. See Nat’l R.R. Passenger Corp.
v. Morgan, 536 U.S. 101, 114–15 (2002). He characterizes his in‐
jury as a continuous denial of visits with his daughter for over
ten years that began in 2004 and analogizes this situation to
cases of prolonged indifference by prison staff to inmates’
medical needs. See, e.g., Turley v. Rednour, 729 F.3d 645, 651
(7th Cir. 2013) (long‐term prison conditions caused cumula‐
tive injury that accrued later for statute‐of‐limitations pur‐
poses); Heard v. Sheahan, 253 F.3d 316, 318 (7th Cir. 2001)
(every day prison officials failed to treat condition “marked a
fresh infliction of punishment that caused the statute of limi‐
tations to start running anew”).
We cannot accept this characterization or the suggested
analogy. The 2004 denial was complete once the visitation was
denied, and Mr. Easterling could have sought redress then.
See Pouncil v. Tilton, 704 F.3d 568, 581–82 (9th Cir. 2012) (ruling
that second denial of conjugal visits was independently ac‐
tionable from original denial for limitations purposes). Sec‐
ond, in medical‐indifference cases, it may be unreasonable to
require a plaintiff to bring multiple suits for ongoing injuries
that are not easily allocable to separate suits. See Turley,
729 F.3d at 651. But here the denial in 2004 was effective only
for six months. It is therefore reasonable to require a separate
Mr. Easterling’s other reply to the limitations defense—eq‐
uitable estoppel—also fails. He contends that he did not sue
earlier because he relied on the warden’s assurance in 2005
that if he completed treatment, he could visit with his daugh‐
ter. But, he says, he did not find out until 2013 that he needed
sex offender treatment, which was unavailable to him. These
allegations do not justify equitable estoppel. “Equitable estop‐
pel, which is a doctrine of federal law, ‘comes into play if the
defendant takes active steps to prevent the plaintiff from su‐
ing in time … .’” Rosado v. Gonzales, 832 F.3d 714, 716 (7th Cir.
2016) (quoting Shropshear v. Corp. Counsel of Chi., 275 F.3d 593,
595 (7th Cir. 2001)). Such a situation can occur if the defendant
“promis[es] not to plead the statute of limitations,” id. (quot‐
ing Shropshear, 275 F.3d at 595), or “prevents a plaintiff from
obtaining information that he needs in order to be able to file
a complaint that will withstand dismissal,” Jay E. Hayden
Found. v. First Neighbor Bank, N.A., 610 F.3d 382, 385 (7th Cir.
2010). Here, Mr. Easterling knew that prison officials had de‐
nied him visits with A.N. in 2004. The warden’s statement
about treatment did not “prevent” Mr. Easterling from know‐
ing that he could sue.
Mr. Easterling also contends that the district court improp‐
erly entered summary judgment for Warden Haines and
Ms. Adams when it reasoned that these officials did not
“deny” him visits with A.N. in 2013. But even if their re‐
sponses were “denials” of visits, Mr. Easterling cannot pre‐
vail. Wisconsin prison officials may not consider a request for
a minor’s visit unless the minor’s guardian has returned a
completed questionnaire, initiated by the inmate through the
formal visitation process, and consented to the visit. See Wis.
Admin. Code DOC § 309.08(1)(b); DAI Policy # 309.06.01.
Mr. Easterling does not challenge the penological legitimacy
of this procedure or dispute that he did not follow it. The pro‐
cedure ensures that the visitor, and not just the inmate, wants
the visit. Because a legitimate penological reason, the lack of
visitor consent, justified any “denial” in 2013, the defendants
are not liable. See Turner, 482 U.S. at 89; Woods v. O’Leary, 890
F.2d 883, 887 (7th Cir. 1989) (restriction that required compli‐
ance with prison procedures was reasonable).
Finally, we address Mr. Easterling’s contention that the
district court should have recruited counsel for him. The dis‐
trict court did recruit counsel for Mr. Easterling for the limited
purpose of mediation. But Mr. Easterling says he should have
had legal assistance earlier. He requested such visitation four
times, each time showing that he had contacted lawyers to no
avail. He argued that his mental‐health issues (attention‐defi‐
cit and hyperactive disorders, mood disorder, and depres‐
sion), his limited access to the law library, and the complexity
of his case supported recruiting counsel. Each time, the court
correctly assessed the need for the assistance of counsel and
determined that the task at hand did not require such assis‐
tance. The court also reasonably concluded that Mr. Easter‐
ling’s ability to present arguments was “quite advanced,” as
evidenced by his comprehensive, organized filings and so‐
phisticated arguments.7 The district court evaluated “the par‐
ticular plaintiff’s capacity as a layperson to coherently pre‐
sent” the relevant facts and legal argument. Olson v. Morgan,
750 F.3d 708, 712 (7th Cir. 2014) (quoting Pruitt v. Mote,
7 R.37 at 2.
503 F.3d 647, 655 (7th Cir. 2007) (en banc)). We therefore can‐
not say that the district court abused its discretion in declining
to recruit counsel.
The judgment of the district court is therefore
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