Zastrow v. Wisconsin Department of Corrections et al

Filing 38

ORDER Granting in Part and Denying in Part Defendants' Motion for Summary Judgment 25 , Granting in Part and Denying in Part Plaintiff's Motion for Trial 24 , and Setting a TELEPHONIC SCHEDULING CONFERENCE for 5/29/13 at 9:00 AM. Court will initiate the call. Further ordering that defendants Pollard, Baenen, Francois, Rose and Cole are dismissed. (cc: all counsel; via US Mail to Plaintiff) ((cef), C. N. Clevert, Jr.)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

STEVEN F. ZASTROW,
Plaintiff,
v.

Case No. 11-C-371

WILLIAM POLLARD, DENNIS MOSHER,
CATHY FRANCOIS, MICHAEL BAENEN,
WELCOME ROSE, and CHARLES COLE,
Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT (DOC. 25), GRANTING IN PART
AND DENYING IN PART PLAINTIFF’S MOTION FOR TRIAL (DOC. 24),
AND SETTING A TELEPHONIC SCHEDULING CONFERENCE
Plaintiff filed this pro se action pursuant to 42 U.S.C. § 1983 and was granted leave
to proceed in forma pauperis on a claim that prison officials violated his due process rights
by denying his marriage request. Defendants have filed a motion for summary judgment,
which will be granted in part and denied in part for the reasons stated herein.
STANDARD OF REVIEW
“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 also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Ames v. Home Depot U.S.A.,
Inc., 629 F.3d 665, 668 (7th Cir. 2011). “Material facts” are those under the applicable
substantive law that “might affect the outcome of the suit.” See Anderson, 477 U.S. at 248.

A dispute over “material fact” is “genuine” if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Id.
A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by: “(A) citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only), admissions, interrogatory answers,
or other materials; or (B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce admissible
evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). “An affidavit or declaration used
to support or oppose a motion must be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the affiant or declarant is competent to
testify on the matters stated.” Fed. R. Civ. P. 56(c)(4).
FACTUAL BACKGROUND1
At all times relevant to this matter, plaintiff Steven F. Zastrow (Zastrow) has been
a Wisconsin state prisoner confined to the Green Bay Correctional Institution (GBCI).
Defendant Dennis Mosher (Mosher) is employed by the Department of Corrections
(DOC) as Institution Social Services Director at the GBCI. Mosher has been in this position
since 2004, and is responsible for supervising chaplains, social workers, recreation leaders
and records. Moreover, his responsibility includes marriage coordinator. In this capacity,
Mosher reviews inmate files and makes recommendations to the Warden on the
appropriateness or legality of proposed marriages.

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Facts are taken from the undisputed portions of the Defendants’ Proposed Findings of Fact (Doc.
27), and from the verified com plaint (Doc. 1).

2

Defendant William Pollard (Pollard) is employed by the DOC as Warden of the
Waupun Correctional Institution in Waupun, Wisconsin. He was Warden at GBCI from
March 2005 to March 2011. In Pollard’s capacity as Warden, he has the duties generally
defined by Wis. Stat. § 302.04 and as otherwise set forth in the Wisconsin Statutes and
Wisconsin Administrative Code. Pollard is responsible for the overall administration and
operation of the institution. These duties include the implementation of all DOC policies
and directives, as well as the implementation of legislative and judicial mandates. Pollard
is familiar with policies applicable to the GBCI and the general operation of the institution.
Defendant Michael Baenen (Baenen) is currently employed by the DOC as the
Warden at GBCI. Baenen has held this position since March 27, 2011. Prior to becoming
Warden, he was employed as the Deputy Warden at the GBCI from August 1, 1999 to
March 26, 2011. In Baenen’s capacity as Deputy Warden, under the general direction of
the Warden, he had the duties and responsibilities to help develop, implement, and
administer the security, treatment, and support services for the GBCI. Baenen was also
responsible for providing the appropriate information to agencies, the legislature, and the
public on institution development and operations.
Defendants Catherine Francois (Francois), Welcome Rose (Rose), and Charles
Cole (Cole) are employed by the DOC. Francois is the Inmate Complaint Examiner (ICE)
at the GBCI, (Rose) is a Corrections Complaint Examiner (CCE), and (Cole) is the Deputy
Secretary of the DOC. Cole is the DOC Secretary's designee for the purpose of making
final agency decisions on offender complaints filed by Wisconsin inmates in the Inmate
Complaint Review System (ICRS).

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Division of Adult Institutions (DAI) Policy and Procedures 309.00.06 states:
Inmates may request to marry while incarcerated if the following conditions
are met:
a.
b.
c.
d.
e.
f.

The marriage does not pose a threat to the security of the
institution/center or a threat to the safety of the public;
There are no legal impediments to the marriage;
The inmate is not scheduled for release within nine (9) months;
The proposed spouse or the proposed spouse’s children are not
victims of the inmate;
The proposed spouse has never been convicted in any criminal
activity with the inmate; and
The proposed spouse has been on the inmate’s visiting list for a
minimum of one (1) year.

DAI Policy 309.00.06 section V requires that pre-marital counseling be completed before
the marriage occurs and that counseling sessions will not be provided by institution/center
staff. DAI Policy 309.00.06 further states that counseling sessions will be completed in
person on institution/center grounds.
On or around January 14, 2011, Zastrow submitted a request for an official decision
on his request to marry Trina Lewis. As the marriage coordinator at GBCI, Mosher
reviewed Zastrow’s request and found that Zastrow’s request did not meet the
requirements of DAI Policy 309.00.06. Mosher responded to Zastrow’s request on January
18, 2011, informing him that his request for marriage to Trina Lewis was denied. Mosher
noted that a review of his visiting list indicated that Ms. Lewis was not on his approved
visitors list and that GBCI staff was not authorized for the required counseling pursuant to
DAI Policy 309.00.06. Mosher advised Zastrow that he would also be obliged to bear all
financial obligations associated with the pre-marital counseling and marriage.
Mosher also noted that there were security and practicality concerns and issues with
Zastrow’s proposal to have the wedding performed via video conference, as GBCI had no
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video marriage arrangements outlined by any policy or procedures. Mosher further
informed Zastrow that he did not approve the marriage due to Zastrow’s background and
the incarcerated status of Ms. Lewis.
Mosher noted that Ms. Lewis had not been on Zastrow’s visiting list for more
than one year and that Zastrow had never made a request to have her placed on his visitor
list. Moreover, Zastrow’s background was determined by Mosher to include revocation for
sexual misconduct, violence and failure to complete programming. Mosher also found that
Ms. Lewis was incarcerated in Minnesota.
The DOC believes that for two persons to decide to marry there are many issues
and concerns that need to be addressed to ensure a lasting, healthy marriage. In the
situation of an incarcerated person, these issues are relevant because the couple is
separated and there may be difficulties related to financial and sexual matters. With
regard to incarcerated persons, the DOC also believes marriage counseling may assist in
the success of the prisoner’s rehabilitation and re-integration into society.
The Department of Corrections is not financially responsible for an inmate’s decision
to marry. This is a choice made by the inmate, and he and his spouse are to shoulder
costs related to their desire to marry. Ms. Lewis’s incarceration in Minnesota makes her
unable to attend the required counseling sessions. Additionally, if a background check
indicates the proposed spouse has any number of problematic conditions, such as
incarceration, this would prohibit meaningful pre-marital counseling as arrangements would
not be practical from a security perspective.
The requirement that the proposed spouse be on the inmate’s approved visiting list
for a minimum of one year attempts to ensure a safe and productive visiting experience for
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all inmates. The one year minimum also allows the couple to get to know each other and
interact for a period of time prior to making the big decision.
An inmate’s visitors are screened for clearance prior to being placed on the inmate’s
visiting list. The DOC strives to ensure public safety while the inmate is incarcerated as
well as upon his return to the community. A proposed visitor must fill out a visitor
questionnaire (Form DOC 21AA) and submit it to the institution to be considered for
placement on an inmate’s approved visitor list. If the requested visitor is denied visitation,
inmates may resubmit a proposed visitor’s name for re-consideration six months after the
initial decision.
Zastrow sent Pollard a letter dated January 20, 2011, informing him that Mosher
denied his request for marriage to Ms. Lewis. Zastrow complained that the rule requiring
that the proposed spouse be on his visitors list was an unnecessary burden and the
wedding could take place over video conference, telephone or by affidavit. Zastrow then
requested that Pollard provide an “official decision…on granting marriage request between
[Zastrow] and Trina Lewis.” Pollard reviewed Zastrow’s request and Mosher’s decision and
found that Mosher denied Zastrow’s request on the grounds that Zastrow’s request did not
meet the requirements of DAI Policy 309.00.06. Pollard denied Zastrow’s request for
marriage, informing him that Mosher’s response and decision were supported. Pollard
made his decision based on his review of Zastrow’s request, DOC Policies and
Procedures, and Mosher’s findings and decision.
Consistent with § DOC 310.05, Wis. Admin. Code, inmates must exhaust all
administrative remedies that the DOC has promulgated by rule before they may commence
a civil action or special proceeding against any officer, employee or agent of the
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department in that person's official or individual capacity. To exhaust his administrative
remedies under the Inmate Complaint Review System, pursuant to Wisconsin
Administrative Code § DOC 310.13(1), an inmate dissatisfied with a reviewing authority
decision may, within 10 calendar days after the date of the decision, appeal that decision
by filing a written request for review with the corrections complaint examiner on forms
supplied for that purpose.
Zastrow filed inmate complaint GBCI-2011-2003 concerning denial of his request
to marry Ms. Lewis. Defendants Francois, Baenen, Rose, and Cole’s only involvement with
the above claim consisted of their actions respecting the disposition of inmate complaint
GBCI-2011-2003 filed by Zastrow, and received by the ICE on January 27, 2011. In his
inmate complaint, Zastrow asserted that Mosher denied his request for approval of
marriage to Ms. Lewis and Pollard supported that denial. Zastrow further contended that
Mosher and Pollard did not provide “extenuating circumstances” to deny the marriage
request.
As the ICE, Francois investigated Zastrow’s complaint and found that Policy DOC
309.00.06 outlined marriages for inmates and that section IV B of the policy stated
“reasons for disapprovals will be provided in writing” by the warden. Francois noted that
Zastrow’s request was made to Mosher, who responded in writing stating that he did not
approve the marriage and listed reasons that supported the disapproval. Francois further
noted that Zastrow wrote to the warden who responded and supported Mosher’s decision
in compliance with DOC 309.00.06 IV. On January 27, 2011, Francois found that there
was no violation of the Wisconsin Administrative Code and recommended that complaint
GBCI-201102003, filed by Zastrow, be dismissed.
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On January 31, 2011, Baenen reviewed Zastrow’s inmate complaint and the findings
of the ICE as the reviewing authority. Based on those findings, Baenen accepted the ICE’s
recommendation and dismissed Zastrow’s inmate complaint GBCI-2011-2003. Zastrow
appealed this decision to the CCE’s office, where it was received on February 7, 2011.
On March 25, 2011, as the CCE, Rose reviewed Zastrow’s inmate complaint, the
ICE findings and recommendation, and his appeal. She found that the institution’s decision
reasonably and appropriately addressed the issue raised by Zastrow and that the appeal
presented no information to warrant a recommendation overturning that decision. Rose
noted that DAI Policy 309.00.06 requires the proposed spouse to be on the inmate’s
approved visiting list for a minimum of one year, and that Zastrow’s proposed spouse did
not meet that requirement.

Rose further noted that Zastrow had not made proper

arrangements for the required marriage counseling. Also, Rose found that the denial of
Zastrow’s marriage request was appropriate and recommended that his appeal be
dismissed. Lastly, Rose encouraged Zastrow to review DAI Policy 309.00.06 for specifics
on the conditions required for his marriage request to meet approval.
Cole reviewed Zastrow’s inmate complaint along with the findings of the ICE and
CCE, and then dismissed the complaint on March 30, 2011.
Defendants Francois, Baenen, Rose, and Cole did not have the authority to approve
or deny Zastrow’s marriage request or reverse the decision of Mosher or Pollard. They
could only determine whether staff violated administrative rules in deciding Zastrow’s
request for marriage.

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ANALYSIS
In support of summary judgment on the merits, defendants offer that their reasons
for denying Zastrow’s request to marry were reasonably related to legitimate penological
interests. Specifically, Ms. Lewis had not been on Zastrow’s visitor list for a year to allow
them to get to know each other and ensure public safety upon his release, and Zastrow
and Ms. Lewis had not completed marriage counseling designed to assist Zastrow in a
successful rehabilitation and re-integration into society. In addition, defendants submit
that Francois, Baenen, Rose, and Cole lacked personal involvement in the decision not to
approve Zastrow’s marriage request and cannot be liable under 42 U.S.C. § 1983.
Furthermore, defendants contend that they are entitled to qualified immunity because it
was not clearly established that their conduct would violate Zastrow’s rights.
In response, Zastrow maintains that defendants’ reasons for denying his marriage
request are invalid, as he has known Ms. Lewis for many years, and because marriage
counseling is not ordinarily a necessary prerequisite to marriage. He also asserts that
defendants rejected, without adequate justification, his suggestion that he be permitted to
complete the required marriage counseling by videoconference. Defendants did not file
a reply brief.
I. Personal Involvement
Francois, Rose, Baenen, and Cole have been involved in the decision to deny
Zastrow’s proposed marriage to Ms. Lewis as they found that the decision complied with
applicable DOC regulations at that time. However, such involvement is not a sufficient
basis for liability under § 1983. George v. Smith, 507 F.3d 605, 609-10 (7th Cir.2007)
(“Ruling against a prisoner on an administrative complaint does not cause or contribute to
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the [constitutional] violation.”); Johnson v. Snyder, 444 F.3d 579, 584 (7th Cir.2006).
Hence, these defendants will be dismissed.
II. Qualified Immunity
Qualified immunity protects government officials from facing suits for damages when
their actions do not violate clearly established constitutional or statutory rights. See Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982). Once a defendant asserts a qualified-immunity
defense, the plaintiff has the burden to establish that the defendant's actions violated a
clearly established right. See Estate of Escobedo v. Bender, 600 F.3d 770, 779 (7th
Cir.2010).

To be clearly established, a right “must be sufficiently clear that every

reasonable official would have understood that what he is doing violates that right.”
Reichle v. Howards, ___ U.S. ___, 132 S.Ct. 2088, 2093 (2012) (internal quotation
omitted). A plaintiff is not required to identify a case that is factually identical to his own
suit, but “existing precedent must have placed the statutory or constitutional question
beyond debate.” Ashcroft v. al-Kidd, ___ U.S. ___, 131 S.Ct. 2074, 2083 (2011). Courts
may determine that a defendant's action did not violate a clearly established right without
deciding the question of whether a constitutional right was violated at all. See Pearson v.
Callahan, 555 U.S. 223, 236 (2009). In 1990, the Seventh Circuit held in an unpublished
opinion:
The Turner decision does not explicitly invalidate counseling requirements,
and its application to this case is not so straightforward that it can be said to
clearly establish the invalidity of such requirements. We do not imply with
this holding that Turner will not operate to preclude counseling requirements
such as this one, but only that its application to that context is not so obvious
that it can be said to constitute clearly established constitutional law.

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Williams v. Shettle, 1990 WL 136783 *2 (7th Cir. 1990) (unpublished opinion). Despite the
intervening years, case law still does not provide an unambiguous answer as to whether
requiring marriage counseling as a precondition to a prisoner’s marriage violates the
Constitution. Zastrow has identified no case that would alert the defendants that a policy
requiring counseling is unconstitutional. Hence, defendants Mosher and Pollard are
immune from money damages. This leaves Zastrow’s claim for declaratory relief.
III. Merits/Turner Analysis
Like other people, prisoners enjoy a constitutionally protected right to marry, subject
to substantial restrictions when one or more of the prospective spouses is incarcerated.
Turner v. Safley, 482 U.S. 78, 95 (1987). However, the regulation of a prisoner’s right to
marry must be “reasonably related to legitimate penological interests” to be valid. Id. at 89.
Restrictions that burden the right to marry will be overturned if “they are an exaggerated
response” or if “the rule sweeps much more broadly than can be explained by . . . the
proffered justification.” Id. at 98. “Turner does not say that every delay violates the
Constitution,” so some delay may be permissible, particularly “when the prisoner’s
misbehavior has led to” the issues causing the marriage to be delayed. Martin v. Snyder,
329 F.3d 919, 922 (7th Cir. 2003).
On this record, it is impossible to determine whether the outright denial of Zastrow’s
marriage request was an exaggerated response by prison officials or a decision reasonably
justified by legitimate peonological concerns. The requirement that a prospective spouse
be listed on a visiting list for a year prior to approval of a marriage request may be
reasonable in many circumstances.

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Defendants submit that hasty prison marriages, where the partners have had no
opportunity to get to know one another prior to the marriage, may pose public safety
concerns upon the inmate’s release. However, in situations where the inmate is able to
demonstrate a longstanding relationship with the proposed spouse, this requirement may
lack sufficient support.
Similarly, defendants suggest that premarital counseling may benefit the inmate’s
rehabilitation. But aside from a vague mention of unspecified logistical or cost concerns,
defendants do not explain why Zastrow’s request to participate in the required counseling
by videoconference is unacceptable. Although in-person counseling may be preferable,
the requirement of in-person marriage counseling bars Zastrow from progressing towards
marriage approval until Ms. Lewis is released from prison. Moreover, the record before this
court does not demonstrate why Zastrow’s requested videoconference accommodation
could not be accomplished. Toms v. Taft, 338 F.3d 519, 527 (6th Cir. 2003) (“[T]he
distinction between actively prohibiting an inmate’s exercise of his right to marry and failing
to assist is untenable in a case in which the inmate’s right will be completely frustrated
without officials’ involvement.”).

On this minimal record, it cannot be held that the

regulations applied to prohibit Zastrow’s marriage request satisfy Turner. Therefore,
IT IS ORDERED that defendants’ motion for summary judgment (Doc. 24) will be
GRANTED in part and DENIED in part.
IT IS FURTHER ORDERED that defendants Pollard, Baenen, Francois, Rose, and
Cole are DISMISSED.
IT IS FURTHER ORDERED that qualified immunity protects the defendants from
paying monetary damages for their past actions.
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IT IS FURTHER ORDERED that plaintiff’s motion for trial (Doc. 24) will be
GRANTED in part and DENIED in part.
IT IS FURTHER ORDERED that a telephonic scheduling conference is set for 9:00
AM on May 29, 2013. The court will initiate the call.
Dated at Milwaukee, Wisconsin, this 26th day of March, 2013.
BY THE COURT
/s/ C.N. Clevert, Jr.
C.N. CLEVERT, JR.
U.S. District Judge

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