Flynn v. Burns
Filing
53
ORDER signed by Judge J.P. Stadtmueller on 1/29/2018: GRANTING 26 Defendant's Motion for Summary Judgment; DENYING 38 Plaintiff's Motion for Summary Judgment; GRANTING 40 Plaintiff's Motion to Seal Documents; and DISMISSING CASE with prejudice. (cc: all counsel, via mail to Darryl Allen Flynn at Waupun Correctional Institution) (jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DARRYL ALLEN FLYNN,
Plaintiff,
v.
Case No. 17-CV-312-JPS
MATTHEW BURNS,
ORDER
Defendant.
Plaintiff Darryl Allen Flynn (“Flynn”), a prisoner, brings this action
pursuant to 42 U.S.C. § 1983 against Defendant Matthew Burns (“Burns”),
a correctional officer at Waupun Correctional Institution (“Waupun”),
arising from an allegedly unlawful no-contact order that prevented Flynn
from having any contact with his daughter for a year. Burns filed a motion
for summary judgment on October 2, 2017. (Docket #26). The motion is fully
briefed and, for the reasons stated below, it will be granted.1
1.
STANDARD OF REVIEW
Federal 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.
On November 28, along with his response to Burns’ motion, Flynn filed
his own request for summary judgment. (Docket #38). The motion came nearly
two months after the Court’s deadline for dispositive motions, (Docket #13 at 2),
and Flynn did not explain why he could not have filed the motion timely, see Fed.
R. Civ. P. 6(b)(1). It will be denied as tardy.
1
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). The court must not weigh the evidence presented
or determine credibility of witnesses; the Seventh Circuit instructs that “we
leave those tasks to factfinders.” Berry v. Chicago Transit Auth., 618 F.3d 688,
691 (7th Cir. 2010). The party opposing summary judgment “need not
match the movant witness for witness, nor persuade the court that [his] case
is convincing, [he] need only come forward with appropriate evidence
demonstrating that there is a pending dispute of material fact.” Waldridge
v. Am. Hoechst Corp., 24 F.3d 918, 921 (7th Cir. 1994).
2.
RELEVANT FACTS
2.1
The Parties
Flynn has been incarcerated at Waupun since 2014, and was
previously housed there from 2005 to 2010. Burns is employed as a
correctional officer at Waupun and holds the rank of lieutenant. He has held
this position since April 2016.
2.2
Flynn’s Contact With His Daughter and Her Mother
Natasha Williams (“Williams”) is the mother of S.W., one of Flynn’s
daughters.2 On March 23, 2016, Flynn spoke with Williams about his desire
Burns uses the term “legal guardian” throughout his submissions to refer
to Williams, but neither party has presented evidence demonstrating whether she
has sole legal custody of S.W. or whether Flynn’s parental rights have been
terminated under Wisconsin law. See Wis. Stat. § 48.01 et seq. As will become clear
later on, answers to these questions would have had a substantial impact on the
disposition of the case. For present purposes, the Court assumes that the parents
share legal custody of their daughter. This appears to be an unstated premise in
2
Page 2 of 40
to have routine contact with S.W. During this phone call, Williams
indicated that she had no problem with Flynn contacting S.W. without
going through her. She said that she felt S.W. was mature enough to decide
whether she wanted to communicate with her father. After Flynn asked
Williams for a picture of S.W., she replied: “Darryl listen, S.W. is 15 years
old, if you want to write S.W. or talk to S.W., S.W. is old enough, she is in
high school, she is old enough to be able to do all of that that you want her
to do, she is not a little kid no more.” See (Docket #45 ¶ 5); (Docket #48).3
Williams also stated: “And Darryl I ain’t mad at you or nothing, I’m just
saying that you all can have a conversation, you know, you all don’t have
to use me as a three-way.” (Docket #45 ¶ 6). At the time of this conversation,
Flynn knew that S.W. lived sometimes at her mother’s house and
sometimes at her great-aunt’s house.
Flynn’s submissions. See (Docket #41 at 5) (referring to Williams as the custodial
and himself as the non-custodial parent).
Docket entry 48 is a placeholder for a compact disc containing audio
recordings of the phone calls at issue in this case. Both the Court and Burns’
counsel reviewed the disc and listened to the recordings on it. The parties dispute
the contents of the calls, but the Court’s narrative reflects the relevant contents of
the calls accurately. While testimony about the contents of the calls might have
been rejected as hearsay, recordings of the calls can be used to prove their contents,
particularly as Burns does not challenge the authenticity of the recordings.
3
However, for the March 23, 2016 call, the Court relies upon Flynn’s account
of its contents. He appears to have provided some other, irrelevant call on the disc
in place of the March 23 call. The Court listened to all four audio files on the disc,
and while it was able to discern which files corresponded with the March 26, April
2, and April 17 calls, the remaining file does not contain any of the statements
Flynn claims it does. Indeed, that final recording cannot be from March 23, 2016,
as it references the no-contact order that was not issued until May of that year.
Further, Flynn’s recent declaration regarding the recordings did not clarify
matters. See (Docket #52). However, because it does not change the outcome, the
Court will take as true Flynn’s representation about the contents of the March 23
call.
Page 3 of 40
On March 26, 2016, during a phone conversation between Flynn and
his daughter, S.W. informed Flynn that she had written him two letters. He
replied that he had never received them. During this same conversation,
S.W. stated that she had not been receiving Flynn’s mail, either. Flynn
suspected that Williams had been intercepting mail to and from S.W.,
although S.W. did not actually say that this was occurring during the March
26 call. Additionally, during the call S.W. opined that Flynn’s recurring
phone calls to her had not been received because her mother’s thenboyfriend had blocked the calls out of jealousy.
Knowing that S.W. was splitting her time between her mother’s
house and her great-aunt’s house, that her mother’s boyfriend was
interfering with their contact by blocking his phone calls, and that Williams
was intercepting their mail, Flynn decided to send letters to S.W.’s school
to ensure that she received them. He wrote to the principal of the school
and sought approval, explaining why he wanted to write S.W. at school and
telling the principal that he would take a week’s silence in response as a
sign of approval to begin writing. After a week with no response, Flynn sent
S.W. a greeting card to see if the school would in fact give it to her. It did.
After the greeting card, Flynn sent a letter and some self-addressed
stamped envelopes to S.W.’s school. He wrote only her name on the
envelopes, with the idea that whatever return address she placed on the
envelope would be the address that he would write her at from then on.
S.W. wrote back using the school’s address as her return address. In the
letter, she expressed admiration for Flynn and frustration at her mother,
alleging that she was being mistreated at home.
Flynn avers that “[a]s a father, I felt obligated to make my daughter
feel loved and special. I knew that the only way to accomplish this goal was
Page 4 of 40
to build and maintain a relationship with her despite her mother’s attempts
at parental alienation.” Id. ¶ 14. Additionally, he felt no qualms writing to
S.W. at school, since it was necessary to circumvent Williams’ interception
efforts and Williams had already given permission for such contact without
her knowledge or involvement. Id. Flynn reports that every time S.W. wrote
to him, she used her school’s address as her return address. If at any time
she had expressed to him that she did not want to be written at her school,
Flynn avers that he would have immediately stopped. However, S.W.
continued to write and express how happy she was to be corresponding
with Flynn.
2.3
Burns’ Contact With Williams and the No-Contact Order
On May 27, 2016, Williams, having learned that Flynn was writing
to S.W. at school, called the institution to voice her concerns regarding
Flynn contacting their daughter. Burns was the supervisor on duty that
night who answered the call. Williams told Burns that Flynn was sending
letters to their daughter at school in order to circumvent her from being able
to read the letters.4 Burns offered that the institution could issue a no-
Burns claims that, based on Williams’ statements, it appeared that Flynn
was trying to contact his daughter at her school as a way of circumventing her
mother from oversight of the correspondence. Anthony Meli (“Meli”), the
Waupun security director, opines that secret communication against the wishes of
the mother is considered anti-social, counter-rehabilitative behavior. (Docket #29
¶ 18). However, Flynn correctly notes that the substance of Williams’ comment—
that Flynn was trying to circumvent her by writing to S.W. at school—cannot be
proved by Burns’ testimony about the contents of the call. That would violate the
rule against hearsay. Fed. R. Evid. 802. However, Burns is likewise correct in
saying that the statement can be considered for the effect it had on him as the
hearer, which is a non-hearsay purpose for the evidence. Id. 801(c)(2); United States
v. Hanson, 994 F.2d 403, 406 (7th Cir. 1993). In any event, although the parties
strenuously disagree as to whether Williams condoned the Flynn-S.W.
4
Page 5 of 40
contact order to prevent Flynn from contacting S.W. Williams assented and
asked that the no-contact order be issued. Burns told Williams that he
would issue the order that evening.
Burns avers that at this time it was his understanding that Williams
was S.W.’s legal guardian. Burns did not confirm that Williams was in fact
S.W.’s guardian or ask Williams to prove this in any way. He simply took
her at her word. (Flynn suggests it may actually have been another
individual calling, but this is pure speculation.) Additionally, Burns did not
conduct any type of investigation into Williams’ request prior to issuing the
no-contact order. Based on his training and experience, taking such a
request over the phone from the custodial parent of a minor is sufficient to
warrant issuance of a no-contact order.
On May 27, Burns sent correspondence to Flynn ordering him to not
communicate with Williams’ daughter by any means. The no-contact order
read: “On 5/27/2016, I received a complaint from Natasha Williams
indicating that you have written and/or called her house or contacted her
daughter at her school. This party has requested that you no longer write,
call or contact them again. Therefore, I am ordering you to not communicate
with this party again. Failure to comply with this order will result in
disciplinary action.” (Docket #30-1).
2.4
Flynn Challenges the No-Contact Order
Since receiving the no-contact order, Flynn has submitted nineteen
interview request forms to different staff members concerning the order.5
correspondence, the Court must resolve that dispute in Flynn’s favor at this
juncture.
At Waupun, correspondence from a prisoner to a staff member is
accomplished via an interview/information request form. It is a double-sided
5
Page 6 of 40
Flynn wrote eight such requests to Burns between May 28, 2016 and March
3, 2017. Burns only responded to three.
On May 28, 2016, Flynn wrote Burns two interview requests. In the
first, he informed Burns that S.W. was his daughter and that paternity had
been established in 2002. In the second, Flynn asked Burns what evidence
of wrongdoing had he required Williams to produce before issuing the
order and what Department of Corrections (“DOC”) policy gave him the
authority to impose such a restriction. Burns never answered those
questions. On May 31, the Waupun security director, Meli, wrote to Flynn
and confirmed that Burns had issued the no-contact order and that all
questions should be directed to him.
On June 6, Flynn wrote Burns again and explained that he had not
written to Williams or sent mail to her house. He explained that he had been
contacting S.W. at school and that she wanted the contact. To prove this,
Flynn sent Burns five pages from two different letters written by S.W. in
which she expressed her desire to communicate with Flynn.
On June 10, Burns responded to one of Flynn’s May 28 interview
requests, stating that he had received a complaint from Williams and that,
document, with one side giving lines for the prisoner to address the request to the
addressee and the other side providing lines so that the prisoner can write or type
his issue or question. The form is then folded and placed in the institution mailbox
to be delivered to the addressee. It is usually delivered to the addressee the next
day. No postage is required to send such a request.
Flynn avers that during his thirteen years of incarceration thus far, he has
sent hundreds of interview requests to staff members and has never heard of one
being lost or not delivered to the addressee. However, he claims there are times
when the addressee ignores the request and will not respond, and then the
contents of that request is lost forever. To avoid losing their contents, Flynn states
that it is his practice to make an exact duplicate of every important interview
request he sends to the institution staff.
Page 7 of 40
as a DOC employee, he was required to issue the no-contact order. He
invited Flynn to file an inmate complaint through the Inmate Complaint
Review System (“ICRS”). That same day, Flynn filed such a complaint,
contending that the no-contact order violated his right to communicate with
his daughter. Also on June 10, Flynn filed a motion in Milwaukee County
Circuit Court seeking an order that would allow him to communicate with
S.W. by letter, phone, and visitation.
Later that month, Burns was contacted by the inmate complaint
examiner, James Muenchow, about Flynn’s complaint. Burns provided him
with a copy of the no-contact order. Flynn’s complaint was dismissed by
Muenchow because the no-contact order was “consistent with the need to
protect the public.” (Docket #31-1 at 2). Muenchow further stated that
Inmate Flynn must realize that the matter between himself
and the mother of his child is something of which the ICRS
will not nor cannot intercede upon, referencing any
“ordered” communication or prohibition of same. That is a
legal matter that cannot be determined here.
Id. Finally, Muenchow noted that Burns continued to investigate the matter
and the no-contact order could be lifted if warranted after that
investigation. See id. The warden affirmed Muenchow’s disposition.
Flynn has several complaints about the adequacy of the grievance
process. First, he notes that Muenchow told him three times that Burns was
investigating the matter. As a consequence, Flynn continued to correspond
with Burns about his investigatory efforts. Yet Burns now tells the Court
that Muenchow was mistaken and that he did not perform any
investigation at any time. Second, says Flynn, the ICE dismissed his
complaint because they have “a clanked policy to affirm the decisions of
security supervisors.” (Docket #51 at 20).
Page 8 of 40
Third, Flynn complains of additional alleged misinformation from
Muenchow about the scope of ICRS review. From Muenchow’s statement
that ICRS would not intervene in the parent-parent dispute, Flynn thought
Muenchow was stating that his department did not have the authority to
review a no-contact order. However, Flynn did not want to leave this to his
own surmise, so he wrote Muenchow and asked him to expound on his
statement. Muenchow responded, “We will not second-guess security
decision or question a judge’s order.” (Docket #45 at 87). This complaint
was appealed to the Office of the DOC Secretary, where it was ultimately
dismissed as Flynn did not provide any additional evidence to recommend
overturning the institution’s decision.
On July 10, Flynn wrote Burns another interview request explaining
that he had just learned that S.W. was currently living with his niece. Flynn
asked Burns if the no-contact restriction could be removed so that he could
contact his daughter at his niece’s residence. Burns never responded to this
request.
On July 31, Flynn wrote Burns and alleged that it was possible that
the complaining caller was not Williams but was instead the cousin of his
daughter’s adult boyfriend. Flynn asked Burns to contact Williams and
confirm that she had actually made the call. On August 9, Burns responded,
stating that “[t]he no contact was done correctly and will not be lifted.” Id.
at 32.
On October 20, Flynn appeared by telephone in Milwaukee County
Circuit Court in the case of Natasha Williams v. Darryl Flynn, Case No.
2001PA2458, for a hearing on his June 10 motion. Williams was present and
objected when Flynn asked the court to order that he be allowed to write
S.W. from the prison. The court held the motion open until it could
Page 9 of 40
determine what S.W. wanted. The court appointed a guardian ad litem to
represent the child and continued the hearing to February 7, 2017.
On December 29, 2016, Flynn sent an open records request to Burns
asking Burns to furnish him with the results of the investigation into the nocontact order. Flynn requested copies of all reports, notes, and evidence
collected. He also asked Burns if there was any way to have the no-contact
order removed so that he could begin writing to his daughter. Burns never
responded to this request and never sent any of the materials that Flynn
demanded.
2.5
The State Court Order and the Second Grievance
On February 7, 2017, at the continued state court hearing, there was
some consensus between the parties that phone calls and letters to S.W.
were acceptable as long as Flynn did not mention Williams. The court
issued a written order directing that Flynn be allowed to mail S.W. one
letter per month to Williams’s house, and Williams could read it before
giving it to S.W. if she wanted. The court also ordered Flynn be allowed at
least one telephone call a month with S.W. Id. at 51–55.
On February 13, Flynn sent a copy of the court order to his social
worker and asked her to place it in his social services file. The records office
responded and explained that they would not place the order in Flynn’s file
because it was not generated by the DOC.
Flynn then sent Burns an interview request dated February 16,
stating that he now had a court order allowing him contact with S.W. and
asking that the prison’s order be rescinded. Attached to that form was a
copy of the state court order. Nevertheless, Burns did not respond and the
no-contact order was not immediately lifted.
Page 10 of 40
Burns claims that he never received a copy of the order, or that he
never actually saw it even if it was attached to the February 16
correspondence. Burns says that if he had received the court order, he
would have worked to lift the no-contact order at that time. Flynn counters
that Burns did receive it and ignored it, based on his experience that
interview requests do not get lost in transit. See supra note 5.
Moreover, Flynn contends that on March 3, Burns came to see him
at his cell. Burns was holding the February 16 correspondence. Burns told
Flynn that he had reviewed Flynn’s numerous interview requests, though
he did not mention the state court’s order. Burns stated, “You keep writing
me all these requests, and I’m not answering because nothing is going to
change.” Id. ¶ 38. Burns warned him to stop asking for the no-contact order
to be lifted. Flynn believes that because Burns was holding the February 16
request, he must have read the attached court order and willfully ignored
it.6
That same day, Flynn wrote Burns a final interview request thanking
him for the visit and explaining that he would follow the order not to bother
him again. However, Flynn also included in the correspondence an open
records request seeking a copy of the February 16, 2017 interview request.
On March 8, Burns answered that “[t]his matter is closed as I stated in our
conversation.” Id. at 38. He did not send the requested copy.
On March 5, Flynn wrote the Waupun warden about Burns’ visit and
asked if there was any way that Flynn could have the no-contact order
At times, Flynn suggests that Burns might have come to see him because
of the filing of this lawsuit on March 2, 2017. However, the Court did not screen
the complaint and order service until March 14, 2017, (Docket #8), so Flynn’s
suggestion is only speculative.
6
Page 11 of 40
removed. Flynn explained that writing is the only way by which he could
communicate with his daughter. The warden never responded.
On March 14, Flynn wrote another open records request, this time to
the prison investigation supervisor, asking for all correspondence between
Waupun and Williams prior to the no-contact order being issued, as well as
all evidence that was obtained during the investigation leading to the
issuance of the no-contact order. The investigation supervisor never
responded to this request.
On March 21, Flynn wrote to the investigation supervisor again and
asked when he would be able to contact his daughter again. He further
questioned whether the prison’s no-contact order trumped the court’s
order. The investigation supervisor replied, “What no contact order are you
referring to?” Id. at 61. On March 25, Flynn sent the investigation supervisor
a copy of the no-contact order and a copy of the state court order. On April
3, Meli responded to this request and stated: “You can have contact with
the child—If the child wants to have contact with you. It appears the child’s
guardian has a no contact order. You will have to contact the court.” Id. at
63.
On June 12, Flynn filed a second ICRS complaint, complaining that
Burns was refusing to remove the no-contact order after he had sent Burns
a copy of the state court order. Muenchow asked Flynn to send him Meli’s
response to the March 25 interview request, but Flynn did not do so
because, as he stated, he normally does not keep requests once he is finished
reading them. Id. at 85.
Burns contends that the first the institution heard of the state court
order was in Flynn’s June 2017 inmate complaint. At that time, Burns spoke
with Meli, since he had never had to modify a no-contact order before and
Page 12 of 40
he wanted to ensure that he was doing things correctly in lifting the nocontact order. Based on the court’s decision, Meli decided to lift the nocontact order as long as Flynn followed the guidelines set forth therein.7
Three days after the complaint was filed, on June 15, Burns sent
Flynn a memorandum informing him that he could now contact S.W. in
compliance with the court order. Burns threatened that if staff ever heard
that Flynn violated the terms of the court order, a no-contact order would
again be placed upon him. Id. at 88.8
Burns sent a copy of the memorandum to Muenchow. On June 16,
Muenchow recommended that Flynn’s second complaint be affirmed with
modifications. On the same day, the reviewing authority affirmed the
complaint. Flynn has been able to contact his daughter since this June 15,
2017 under the guidelines set forth in the court order.9
Flynn complains that the non-contact order has not been removed
from his file and he worries that it might be reinstated, or that the
allegations therein might be used to support a new no-contact order.
Burns points out that Flynn’s approved visitor list includes family
members, such as his son, sister, granddaughter, and two other daughters
Meli suggests that the DOC retains the discretion to refuse to abide by
court orders for “security and rehabilitation” reasons. (Docket #29 ¶ 30). That did
not occur in Flynn’s case.
7
Flynn derides Burns’ remedial actions as having been done at the advice
of counsel. See (Docket #51 ¶ 50). His claim is of questionable relevance and is in
no way supported by the record.
8
While the no-contact order was active from May 27, 2016 through June 15,
2017, Flynn claims that he never violated it. However, the state court order reflects
that Williams alleged that Flynn did try to contact S.W. through one of his other
children between the first session of the hearing on October 20, 2016 and the
second session on February 7, 2017.
9
Page 13 of 40
besides the daughter at issue in this case, S.W. None of Flynn’s family
members on his approved visitor list have no-contact orders issued by
Waupun. Flynn retorts that although he could communicate with other
family members, the no-contact order meant he could not see S.W. along
with their visits nor could he pass messages to her through them.
2.6
Waupun’s No-Contact Policy
Part of the mission statement of the Wisconsin DOC is to protect the
public, its staff, and those in DOC’s charge. Part of protecting the public
includes making sure that inmates are not involved in unwanted,
unsolicited, or harassing contact with members of the public. Issuing nocontact orders is a measure taken in order to protect the public from
unsolicited or harassing contact by inmates in DOC custody.
Meli, as the Waupun security director, provided a great deal of
testimony about DOC and Waupun policy as it relates to no-contact orders.
He avers that whenever a member of the public contacts the institution with
a legitimate complaint about unwanted inmate contact, it is DOC’s policy
to tell the inmate, either verbally or in writing, not to contact that person. A
similar order is issued when a parent or legal guardian of a minor notifies
staff that they do not want a certain inmate contacting the minor. If the
complainant expressly requests that a no-contact order be issued—what
Meli calls a “formal complaint”—the security supervisor will speak directly
to the inmate regarding the complaint and issue him a memorandum
directing him not to make contact with the person listed by any means
whatsoever, be it mail, phone, through visitation, or via a third party.
Meli avers that it does not matter if the complaint was made over the
phone or in writing. Flynn disputes this and points out that the prison
handbook allows no-contact orders to be issued only upon written request.
Page 14 of 40
Nevertheless, Meli maintains that DOC has an additional, unwritten policy
of accepting written or oral complaints as a basis for a no-contact order.
Despite the language of the prison handbook, Burns maintains that it was
this unwritten policy he was trained to enforce.
All security supervisors, including Burns, are trained through onthe-job training in issuing no-contact orders shortly after becoming a
supervisor at Waupun. The supervisor is trained that he or she must speak
with the complainant directly, provided the complainant is over eighteen
years of age. If the complainant is a minor, the supervisor must speak with
the minor’s guardian. The supervisor gathers information regarding the
complainant’s
name,
address,
telephone
number,
date(s)
of
contact/correspondence received, and identification of the inmate or
suspected inmate.10
An inmate’s failure to follow a no-contact order resulting from a
formal complaint will result in disciplinary action. If the complainant does
not want to make a formal complaint, the supervisor will speak with the
inmate and verbally direct them not to contact the person. If it is not based
on a formal complaint, inmates are not subject to disciplinary action for
violating a no-contact order. There is usually no end date to a no-contact
order, unless the party requesting the no-contact order decides to end it.
Burns did not create the no-contact policy. Security supervisors at
Waupun have no discretion with respect to the process regarding issuing
no-contact orders. They are trained to follow it, and have no authority to
circumvent it.
As discussed above, Flynn disputes whether Burns actually gathered all
the required information in his case, but that does not undermine the general
purview of the supervisor’s investigation.
10
Page 15 of 40
2.7
Goals of the No-Contact Policy
According to Meli, Waupun’s no-contact policy serves several
important, related objectives. First, the primary goal of a no-contact order
is to protect the public from harassment by inmates. Telephone calls and
letters, regardless of content, can be harassing if the complainant does not
want an inmate contacting him or her.
Second, although the institution encourages communications
between an inmate and his family and friends, unwanted contact with these
individuals can be counterproductive to the inmate’s rehabilitation, as it
may reinforce negative or potentially criminal behavior. In some cases, the
person receiving the unwanted contact is the victim of the inmate’s crime
or a family member of the victim. In such instances, it is important to
prevent contact so that the person is not subject to re-victimization by the
inmate. That said, being a victim of the inmate’s crime or family member of
the victim is not a prerequisite to obtaining a no-contact order. Because
there are many circumstances which can warrant a no-contact order, DOC
tries to respect the wishes of those individuals who choose to not be
contacted by the inmate.
Third, a no-contact order furthers administrative concerns of the
prison. For instance, if an inmate was allowed to contact someone who had
complained about receiving unwanted correspondence, prison staff might
have to screen each piece of mail and each telephone call to make sure that
the inmate’s statements were appropriate, which would place an
unreasonable burden on administrative staff. Flynn says that the alleged
burden is overblown because the complainant herself can alert the prison
to unwanted correspondence, but Meli avers that DOC nevertheless feels
responsible for screening mail leaving its facilities in the first instance. He
Page 16 of 40
contends that this is the only way to prevent the harm that stems from the
inappropriate letter being received by the complainant. Moreover, the
prison may have to field numerous complaints from individual members
of the public if an inmate was not prevented from contacting people who
did not wish to be contacted.
The blanket-ban nature of a no-contact order also serves a
penological objective. Meli avers that inmates frequently give or trade
contact information between each other, in order to harass or intimidate the
public. Without enforcing a no-contact order, they could share that
information and have third-party contacts. Issuing a blanket ban to an
inmate telling him not to contact a certain person by any means helps avoid
this problem. Flynn protests the suggestion that he shared his daughter’s
information, and Burns concedes that this is simply a general justification
for the prison policy and that no allegation of such conduct has been made
against Flynn personally.
2.8
Enforcing and Challenging a No-Contact Order
Enforcement of no-contact orders relies primarily on the
complainant, who is generally instructed to contact the institution if they
receive future contacts. If notified by the complainant, the prison can verify
future contacts by checking the inmate phone system. If the complainant
receives correspondence, he or she is instructed to keep any letters that
arrive and forward them to the prison, typically to the security director, for
review. Once the security director receives verification that an inmate has
violated his no-contact order, a conduct report is issued.
There are approximately 165 no-contact orders presently in place at
Waupun that have been issued since 2014. Thirty-nine of them were issued
Page 17 of 40
in 2016, including Flynn’s. In 2017, as of the submission of Burns’ summary
judgment motion, there have been sixteen issued.
There is no formal hearing provided prior to the issuance of a nocontact order. Staff are trained to issue the inmate a no-contact order upon
receiving a complaint by a member of the public. If any inmate wants to
challenge the order, he is permitted to file an inmate complaint under the
ICRS. Meli avers that staff do not have the time, resources, or training to
adjudicate at the outset the merits of the various issues that may have
caused a person to request a no-contact order. For the most part, they must
assume the request is warranted.
Flynn strenuously disagrees with the wisdom of this policy, arguing
that cutting off all communication between the inmate and another
person—in this case, a father and daughter—should result from some
meaningful investigation. At a minimum, he should have been apprised
that he could seek relief from a no-contact order in state court, as Flynn
eventually did over a year after the issuance of Burns’ order. Similarly,
Flynn complains that the no-contact order itself did not tell him that he
could file a grievance challenging it. Indeed, says Flynn, even when he
actually filed such a grievance, Muenchow told him repeatedly that the
ICRS was the wrong avenue for relief.
Meli replies in two ways. First, Flynn was permitted to and did file
an inmate complaint after learning of the no-contact order. Second,
although Muenchow said he would not get in the middle of the dispute
between Flynn and Williams, he nevertheless investigated the matter by
contacting Burns, reviewing the policy, and finding the order was
consistent with the need to protect the public. Flynn received a decision by
Page 18 of 40
the warden dismissing the complaint, he appealed the dismissal, and he
received a decision on the merits of his appeal by the Secretary’s office.
3.
ANALYSIS
In this suit, Flynn claims that the no-contact order should never have
been put in place and that, in any event, he should have been told that he
had to seek a court order to undo it. Because he did not know that this was
his recourse, he missed out on a year of communication with his daughter.
Moreover, says Flynn, Burns ignored the state court’s February 2017 order
for a substantial period of time, failing to act on it until June 2017.
Although the facts of this case are simple, its resolution turns on the
law’s uncertainty concerning Flynn’s asserted rights. The thrust of the
complaint is that Burns’ actions and the no-contact policy itself violated his
First Amendment right of association and his Fourteenth Amendment
procedural and substantive due-process rights. These are thorny issues not
susceptible of easy resolution. For that reason, the Court must save them
for another day, since qualified immunity supplies an independent basis
for dismissal of Flynn’s damages claims. See Pearson v. Callahan, 555 U.S.
223, 236 (2009).
The Court will first review the principles of qualified immunity, then
the substantive law applicable to Flynn’s claims. Next, the Court will
explain how the substantive law in this arena did not make plain any
potential constitutional problem so as to overcome Burns’ assertion of
immunity. Finally, the Court will dismiss Flynn’s remaining claims for
declaratory and injunctive relief, as they are moot.
3.1
Qualified Immunity
Qualified immunity protects government officials from suits for
damages when their actions do not violate clearly established constitutional
Page 19 of 40
or statutory rights. 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 action violated a clearly established right.
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, 566 U.S. 658, 664 (2012) (alteration in original) (citation omitted).
“This is a high bar.” Kramer v. Pollard, 497 F. App’x 639, 642 (7th Cir. 2012).
The Supreme Court has emphasized that “the clearly established law
must be ‘particularized’ to the facts of the case. . . . Otherwise, plaintiffs
would be able to convert the rule of qualified immunity. . .into a rule of
virtually unqualified liability simply by alleging violation of extremely
abstract rights.” White v. Pauly, 137 S. Ct. 548, 551 (2017). To defeat a
qualified immunity defense, a plaintiff need not point to a case that is
factually identical to the present suit, but “existing precedent must have
placed the statutory or constitutional question beyond debate.” Ashcroft v.
al-Kidd, 563 U.S. 731, 741 (2011). “In other words, immunity protects ‘all but
the plainly incompetent or those who knowingly violate the law.’” White,
137 S. Ct. at 551 (quoting Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)).
Qualified immunity serves to shield officials from suit in cases involving
“gray areas” of constitutional rights. Maciariello v. Sumner, 973 F.2d 295, 298
(4th Cir. 1992); Anderson v. Creighton, 483 U.S. 635, 639–40 (1987) (a rejection
of qualified immunity requires “that in the light of pre-existing law the
unlawfulness [of a defendant’s actions] must be apparent”).
3.2
Substantive Law Applicable to Flynn’s Claims
Flynn alleges that Burns’ issuing the no-contact order violated his
First and Fourteenth Amendment rights. “[T]he Constitution protects
Page 20 of 40
‘certain kinds of highly personal relationships.’” Overton v. Bazetta, 539 U.S.
126, 131 (2003). This includes the right to associate with close family
members. Id. Courts have found that “[p]arents have a liberty interest,
protected by the Constitution, in having a reasonable opportunity to
develop close relations with their children.” See Hodgson v. Minnesota, 497
U.S. 417, 484 (1990) (Scalia, J., concurring in part and dissenting in part).
Additionally, it is well-settled that prison inmates have a First Amendment
right both to send and receive mail. Kaufman v. McCaughtry, 419 F.3d 678,
685 (7th Cir. 2005).
However, “[t]he very object of imprisonment is confinement.”
Overton, 539 U.S. at 131. “Many of the liberties and privileges enjoyed by
other citizens must be surrendered by the prisoner. An inmate does not
retain rights inconsistent with proper incarceration.” Id. For instance, the
freedom of association, though crucial in the scheme of the Bill of Rights, is
nevertheless “among the rights least compatible with incarceration.” Id. As
a result, “[s]ome curtailment of that freedom must be expected in the prison
context.” Id.
Prison officials may impose reasonable restrictions upon a prisoner’s
constitutional rights. Easterling v. Thurmer, No. 17-1581, 2018 WL 298114, at
*2 (7th Cir. Jan. 5, 2018); Harris v. Donahue, 175 F. App’x 746, 747 (7th Cir.
2006). Burns proposes two potential standards for evaluating the no-contact
policy in this case. The first is the deferential standard articulated in Turner
v. Safley, 482 U.S. 78, 89–91 (1987), which provides that a prison policy will
be upheld if it is reasonably related to legitimate penological interests.
There are four factors that courts must consider under Turner: (1) whether
a rational connection exists between the prison policy regulation and a
legitimate governmental interest advanced as its justification; (2) whether
Page 21 of 40
alternative means of exercising the right are available notwithstanding the
policy or regulation; (3) what effect accommodating the exercise of the right
would have on guards, other prisoners, and prison resources generally; and
(4) whether ready, easy-to-implement alternatives exist that would
accommodate the prisoner’s rights. Id.; Harris, 175 F. App’x at 748. “The four
factors are all important, but the first one can act as a threshold factor
regardless which way it cuts.” Singer v. Raemisch, 593 F.3d 529, 534 (7th Cir.
2010); Mays v. Springborn, 575 F.3d 643, 648 (7th Cir. 2009) (“Where. . .there
is only minimal evidence suggesting that a prison’s regulation is irrational,
running through each factor at length is unnecessary.”). Those who
challenge the reasonableness of a prison regulation bear the burden of
proving its invalidity. Overton, 539 U.S. at 132; Jackson v. Frank, 509 F.3d 389,
391 (7th Cir. 2007).
But the Supreme Court has applied a different, higher bar to
restrictions on outgoing prison mail, which was one component of the nocontact order in this case. In Procunier v. Martinez, 416 U.S. 396, 414 (1974),
the Court held that restrictions on outgoing mail must be “generally
necessary” to protect a legitimate government interest. Such restrictions
must meet two criteria:
First, the regulation or practice in question must further an
important or substantial governmental interest unrelated to
the suppression of expression. Prison officials may not censor
inmate correspondence simply to eliminate unflattering or
unwelcome opinions or factually inaccurate statements.
Rather, they must show that a regulation authorizing mail
censorship furthers one or more of the substantial
governmental interests of security, order, and rehabilitation.
Second, the limitation of First Amendment freedoms must be
no greater than is necessary or essential to the protection of
the particular governmental interest involved. Thus a
Page 22 of 40
restriction on inmate correspondence that furthers an
important or substantial interest of penal administration will
nevertheless be invalid if its sweep is unnecessarily broad.
Id. at 413–14. In Martinez itself, the Court invalidated state prison
regulations authorizing censorship of mail containing defamatory,
inflammatory, or inappropriate statements. Id. at 415. The Court concluded
that the prison authorities had “failed to show that these broad restrictions
on prisoner mail were in any way necessary to the furtherance of a
governmental interest unrelated to the suppression of expression.” Id.
The Martinez standard was later expressly confined to the context of
outgoing prison mail, as restrictions on outgoing mail pose less weighty
institutional concerns than those affecting incoming materials. See
Thornburgh v. Abbott, 490 U.S. 401, 411–14 (1989). The Thornburgh Court
further clarified that while Martinez speaks of general necessity and
requires a “close fit between the challenged regulation and the interest it
purport[s] to serve,” it does not impose a least-restrictive-means
requirement on prisons. Id. at 410–11.
Whether applying Turner or Martinez, a district court may not
substitute its own judgment for that of prison officials when reviewing the
validity of prison regulations. Id. at 407–08; Turner, 482 U.S. at 89. Deference
to prison officials is appropriate because the judiciary does not possess the
necessary expertise and resources to deal with the “difficult and delicate
problems of prison management.” Thornburgh, 490 U.S. at 407. When, as in
this case, a state penal system is involved, the federal courts have even
greater reason to accord deference to prison authorities. Turner, 482 U.S. at
85; Martinez, 416 U.S. at 405.
Page 23 of 40
3.3
Burns’ Conduct Did Not Violate
Established Constitutional Rights
Flynn’s
Clearly
Equipped with an understanding of the high burden Flynn faces to
overcome Burns’ assertion of qualified immunity, along with the nuanced
and interrelated constitutional standards implicated in the no-contact
order, it becomes plain that Burns is entitled to immunity in this case.
Though the parties do little to characterize the relevant rights—an
important initial step in the qualified immunity analysis—the Court
construes them as follows, taking into account the generous standard of
review Flynn enjoys at this juncture as well as the Supreme Court’s
admonition that rights be defined at a high level of specificity:
(1)
Whether it was clearly established that an
inmate has a right to communicate with his minor child
despite a request by the other parent to stop such contact; and
(2)
Whether it was clearly established that an
inmate has a right to a pre-deprivation hearing or notification
about potential remedies before a no-contact order involving
his minor child is issued.
Whether these are the most precise statements of the rights at issue is of
little moment, as nothing in the case law comes close to establishing that
these rights existed at the time Burns acted.
A brief examination of the no-contact policy and Burns’ conduct as
against the substantive legal standards will set the stage for the qualified
immunity analysis. Under either Turner or Martinez, the prison must point
to one or more legitimate interests the policy serves, such as “security,
order, and rehabilitation.” Martinez, 416 U.S. at 413; Turner, 482 U.S. at 89–
91. Meli has averred that the no-contact policy furthers the prison’s interest
in protecting the public, rehabilitation of the inmate, and administrative
concerns, and Flynn does not meaningfully dispute these broad objectives.
Page 24 of 40
Thus, it would appear that the no-contact policy is not invalid based on the
interests it purports to serve. See Lagar v. Tegels, No. 14-CV-036-WMC, 2016
WL 6990011, at *10 (W.D. Wis. Nov. 29, 2016).
A far closer question arises regarding the fit of the policy to Flynn’s
circumstances. To be sure, many cases support the notion that a prison can
restrict communication between a prisoner and others, whether in person
or in writing. Many others uphold a prison’s right to censor outgoing mail
when it is being sent to people who do not wish to receive it. See Berdella v.
Delo, 972 F.2d 204, 209 (8th Cir. 1992); Jones v. Diamond, 594 F.2d 997, 1014
(5th Cir. 1979). Such regulations appear justifiable as being generally—
though perhaps not absolutely—necessary to further the government’s
interests in protecting the public and rehabilitating the inmate. Flynn says
that other policies might be better tailored to the prison’s needs, but not
even Martinez asks institutions to fashion regulations that have a close fit to
their ends. That was the point of Thornburgh. Thornburgh, 490 U.S. at 410–
11.
Flynn’s real point is that this policy is unreasonably broad inasmuch
as it deprived him of over a year of contact with his child. The recurring
refrain in Flynn’s submissions is that his case ought to have been treated
differently because it pertained to communication between a father and
daughter, not a prisoner and a stranger. (Docket #41 at 4). Flynn asks the
Court to more deeply scrutinize the institution’s actions because they
affected what he views as his fundamental right to develop a familial
relationship. Id. at 13.
Page 25 of 40
The Court appreciates that the challenged regulation touched upon
what is viewed outside the prison context as a core individual right.11 But it
must be remembered that Turner was a case about institutional regulation
of the fundamental right to marry. Turner, 482 U.S. at 94. The Court
concluded that the regulation in that case failed its test, but did not suggest
that the test should be something different when a fundamental right is at
stake. See id. at 97–99. Post-Overton courts have not drawn this distinction.
See Thornburgh, 490 U.S. at 410 & n.9; Easterling, 2018 WL 298114, at *2;
Harris, 175 F. App’x at 748. Indeed, the Supreme Court has made it crystal
clear that constitutional rights enjoyed by prisoners are severely limited
and prison restrictions are subject to only modest review. Overton, 539 U.S.
at 131. If the Court engaged in strict scrutiny of the no-contact policy within
the framework of substantive due process, see Heck, 327 F.3d at 518, it would
eviscerate Overton’s policy of deference.
Thus, the result in this case does not change even if the Court credits
Flynn’s assertions—which do have some persuasive force—that the ability
to talk to other family members is no substitute for his ability to talk to S.W.,
that a blanket ban on all contact overreaches the prison’s justifications, and
that the review process contemplated in the no-contact policy, both before
and after such an order is issued, could be much more rigorous (and laid
Such a right appears not to have been implicated in Overton itself, because
the visitation restriction in that case did not affect children for whom the prisoner’s
parental rights had not been terminated. Overton, 539 U.S. at 133. Here, however,
neither Flynn nor Burns make any conclusive indication whether Flynn’s rights as
a parent of S.W. have been terminated. As the Court hinted above, the resolution
of this case might have been far simpler if the parties proffered evidence
establishing this one way or the other. If his rights had been terminated, without
doubt the no-contact order would be upheld. Because the Court must assume that
Flynn retains parental rights over S.W., the question becomes much closer.
11
Page 26 of 40
out in writing). These considerations leave the result of the Turner or
Martinez analyses hazy, for while the justifications for the policy in general
are strong, there remains a total lack of alternative means for Flynn to
exercise his rights and an open question whether a more tailored policy
would work better for parent-child communication issues.
Burns largely ignores this question, asserting only that Williams
“surely” was permitted to forbid contact between S.W. and her father.
(Docket #27 at 12). The Court is not at all so certain. Prison officials may be
wise to rethink this policy when two warring parents are involved. Further,
while some cases involve visitation bans and others restrictions on mail, no
case this Court could locate involved a complete ban on all contact of any
kind. In short, Waupun’s regulation has raised a judicial eyebrow.
These potential shortcomings might bring the policy, at least as
applied to Flynn, close to the constitutional brink, but the lack of clarity in
the law means that Burns cannot be responsible for money damages on that
account.12 Starting with Overton itself, the Supreme Court stated that a
Flynn offers little argument on the qualified immunity question. He
contends that Burns is not entitled to qualified immunity because he was
performing merely the ministerial function of enforcing the prison’s no-contact
policy. This argument is unpersuasive. It may be that the policy as Burns has
construed it left him little discretion to deny a request for a no-contact order. But
he was obligated to make an investigation and come to a determination as to the
propriety of such an order, even if in practice they were usually granted without
question. See Davis v. Scherer, 468 U.S. 183, 196 n.14 (1984) (finding that a law must
“specify the precise action that the official must take in each instance” to qualify
as ministerial). And the Eighth Circuit has observed, citing precedent from this
and other Circuits, that the ministerial-duty exception to qualified immunity is
essentially a dead letter. Sellers By and Through Sellers v. Baer, 28 F.3d 895, 902 (8th
Cir. 1994). The Seventh Circuit has said little about it in many years, other than a
few off-hand mentions. See, e.g., Kiddy-Brown v. Blagojevich, 408 F.3d 346, 352 (7th
Cir. 2005) (“Government officials performing discretionary functions are entitled
to qualified immunity from suit ‘as long as their actions could reasonably have
12
Page 27 of 40
permanent or excessively long deprivation of all visitation privileges, or a
restriction that was “applied in an arbitrary manner to a particular inmate,”
may violate an inmate’s constitutional rights. Overton, 539 U.S. at 137. Justice
Kennedy acknowledged that “outside the prison context, there is some
discussion in our cases of a right to maintain certain familial relationships,
including association among members of an immediate family and
association between grandchildren and grandparents.” Id. at 131 (emphasis
added). He and the majority nevertheless declined to “attempt to explore
or define the asserted right of association at any length or determine the
extent to which it survives incarceration.” Id. at 132. So the Supreme Court’s
pronouncements aid Flynn little.
Circuit courts have recognized the analytical lacunae left in the wake
of Overton. In Wirsching v. Colorado, 360 F.3d 1191, 1198 (10th Cir. 2004), the
Tenth Circuit addressed the friction between a parent’s right to
communicate with his child and the wide discretion afforded to prison
administrators. The Court of Appeals, appreciating the importance of the
right at stake, nevertheless felt constrained by Overton to apply the
deferential Turner test. Id. Indeed, the Tenth Circuit did so even though it
noted that the case before it involved visitation with an inmate’s own
children, whereas Overton only dealt with minors who were not (or who
were no longer) the inmates’ children. Id. at 1199. Wirsching held that the
inmate in question, who was a sex offender, could rationally be precluded
from all contact with his children if he refused to undergo sex offender
treatment, even though it encouraged prison officials to “seriously consider
been thought consistent with the rights they are alleged to have violated.’”)
(quoting Anderson, 483 U.S. at 638).
Page 28 of 40
less draconian restrictions” in view of the crucial parental rights impinged
upon. See id. at 1200.
In Dunn, the Ninth Circuit affirmed a grant of qualified immunity to
prison officials who banned a prisoner from all visitation by minors,
including his own children, for a period of eighteen months. The Dunn
court observed that the Supreme Court’s “hesitation in articulating the
existence and nature of an inmate’s right to receive visits from family
members while in prison is instructive” on the question of whether and to
what extent a right to familial visitation exists. Dunn v. Castro, 621 F.3d 1196,
1202 (9th Cir. 2010). The court found that while incarceration does not
“entirely extinguis[h]” the right to receive visits from family members,
reasonable restrictions as evaluated under Turner are permissible. Id. at
1205. In such cases, the question of how far the restrictions may go “‘is by
no means open and shut.’” Id. (quoting Wilson v. Layne, 526 U.S. 603, 615
(1999)).
The Fourth Circuit came to the same conclusion in Williams v.
Ozmint, 716 F.3d 801, 807 (4th Cir. 2013), in a prisoner’s challenge to a twoyear suspension of visitation privileges without a prior hearing. The
appellate court noted that a two-year ban on visitation was analogous to
the restriction upheld in Overton and that nothing in the record revealed the
suspension to be imposed arbitrarily. Id. at 807–08. Thus, in both Dunn and
Williams, qualified immunity barred any damages claims.
The uncertainty apparent in cases like Wirsching, Dunn, and Ozmint
is fatal to Flynn’s claims. See White v. Pazin, 1:12-cv-00917-BAM (PC), 2016
WL 6124234, at *7–8 (E.D. Cal. Oct. 19, 2016) (analyzing Overton and Dunn
and finding that “[t]hese decisions do not contain any clear articulation of
a constitutional right for prisoners to visitations from their children”). As
Page 29 of 40
the district court explained in White, “[a]t best, Overton and [other decisions]
sugges[t] that prisoners may enjoy some right to visitations from their
children, and that a complete ban on visitations by minors may violate that
right, but the question remains unsettled.” Id. at *10. While this Court, like
those before it, is cognizant of the significant toll a denial of familial contact
may have on a prisoner, the law requires clear direction to prison officials
that such conduct is proscribed before money damages may be had as a
remedy. White, 137 S. Ct. at 551.
A decision of the Seventh Circuit issued just weeks ago confirms that
the rights of prisoners vis-á-vis their family members have been in flux. In
Easterling, a prisoner sued because he was denied visitation with his
daughter for nearly fifteen years because of a twenty-year-old sexual
assault conviction. Easterling, 2018 WL 298114, at *2. The appellate court did
not reach the merits of his claims because, among other things, the prisoner
had missed the statute of limitations. Id. at *3. But the Court of Appeals did
make the following observation:
Prisoners retain a limited constitutional right to intimate
association, established by the Supreme Court in [Turner], and
confirmed in [Overton]. Turner holds that limits on prisoners’
rights are valid if “reasonably related to legitimate
penological interests.” 482 U.S. at 89, 107 S. Ct. 2254. 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, 123 S. Ct.
2162. We therefore have said, albeit 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).
Page 30 of 40
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.
Id. at *2. In a footnote to the final sentence in this quotation, the Seventh
Circuit noted that
[i]n this respect, we join the weight of authority applying
[Overton], and holding that, although inmates do not have an
absolute right to visitation, prison officials may not restrict an
inmate’s visitation with family members without balancing
the inmate’s interests 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
subject to the prison authorities’ discretion, provided their
administrative decisions are tied to legitimate penological
objectives” (emphasis added)); Wirsching v. Colorado, 360 F.3d
1191, 1201 (10th Cir. 2004) (upholding denial of visitation
between incarcerated sex offender and his child after
applying Turner factors).
Id. at *2 n.6.
Easterling represents a meaningful move toward defining a
prisoner’s right to visitation with family members. But for Flynn’s case, the
more salient aspect of Easterling is its observation that it is the first clear
statement of that right by the Seventh Circuit in a published decision.
Obviously, Burns cannot be held to the statements of our Court of Appeals,
however clear, which emanate only after the challenged conduct. And
though Harris applied Turner to a restriction on visitation between a
prisoner and his minor children in 2006, as the Easterling panel noted, it is a
non-precedential decision. Harris, 175 F. App’x at 748. Thus, whether from
within this Circuit or without, Burns had no definitive rule in 2016
prohibiting him from issuing a no-contact order that banned all contact
Page 31 of 40
between Flynn and his daughter for a one-year period based solely on a
request from the mother.
It is also important to appreciate the as-applied nature of Flynn’s
challenge, which necessitates consideration of the fact that the no-contact
order was in place for only one year. Such restrictions have been upheld
even in cases involving parent-child or other close family relationships. In
Dunn, the prohibition lasted eighteen months, and in Overton and Williams
it was two years. Dunn, 621 F.3d at 1203; Overton, 539 U.S. at 134; Williams,
716 F.3d at 807. Furthermore, if the justification for issuing a no-contact
order in this case was light—the word of one parent taken over another—
or could have been more thoroughly investigated, it remains that Burns
received information from which he could rationally conclude that contact
with S.W. should be cut off. His mistake, if any, in that regard is not a basis
for an award of money damages. See Williams, 716 F.3d at 807 (suspension
not issued arbitrarily because prison officials concluded that prisoner had
contraband).
Finally, as Burns points out, the no-contact policy has not been
deemed unconstitutional in any judicial decision, at least none identified by
either party. As noted in Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1251–
52 (10th Cir. 2003), “[i]n considering the ‘objective legal reasonableness’ of
the state officer’s actions, one relevant factor is whether the defendant relied
on a state statute, regulation, or official policy that explicitly sanctioned the
conduct in question.” See also Grossman v. City of Portland, 33 F.3d 1200, 1209
(9th Cir. 1994) (“Courts have [] held that the existence of a statute or
ordinance authorizing particular conduct is a factor which militates in favor
of the conclusion that a reasonable official would find that conduct
constitutional.”). That was the case here. While following the policy in place
Page 32 of 40
does not absolve all constitutional violations, Grossman, 33 F.3d at 1209, in
the absence of authority suggesting the policy was unconstitutional, the
very existence of the policy weighs in favor of immunity, Doe v. Heck, 327
F.3d 492, 516 (7th Cir. 2003) (finding that although application of a state
statute was unconstitutional as applied to the plaintiffs, it was not “so
patently
unconstitutional
as
to
deny
the
defendants
qualified
immunity[.]”).13 Thus, Flynn’s damages claims based on First Amendment
and substantive due process violations must fall to Burns’ assertion of
qualified immunity.
3.4
Flynn’s Procedural Due Process Claim
The same result obtains for Flynn’s procedural due process claim
because it is not clearly established that an inmate is entitled to any more
procedure with respect to the no-contact order than what was provided. At
the outset, it is worth observing that it is not apparent whether analysis of
the no-contact policy in a procedural due process challenge is any different
from the others, see Bazzetta v. McGinnis, 430 F.3d 795, 802–03 (6th Cir. 2005)
(finding that Overton contained an “implicit holding” undermining
procedural due process claims based on denial of visitation), but even if it
is, Flynn’s due process rights were likely satisfied. To succeed on a
procedural due process claim, a prisoner has to prove: “(1) he has a liberty
Burns raises a separate but related argument: that no claims can be
maintained against him in his individual capacity because he was merely
following the policy. (Docket #27 at 6–7). This defense is a variant of the oft-cited
principle that “[p]ublic officials do not have a free-floating obligation to put things
to rights, disregarding rules (such as time limits) along the way.” Burks v. Raemisch,
555 F.3d 592, 595 (7th Cir. 2009). Burns reasons that even if the warden or the DOC
can be faulted for creating the policy, he had no power to do other than what he
did. The Court’s disposition of this case means that it need not and does not decide
whether this argument has merit.
13
Page 33 of 40
or property interest that the state has interfered with; and (2) the procedures
he was afforded upon that deprivation were constitutionally deficient.”
Scruggs v. Jordan, 485 F.3d 934, 939 (7th Cir. 2007).
First, many courts have held that Flynn would not have a protectable
liberty interest in this instance. Protected liberty interests are limited in
prison context. Under Sandin v. Conner, 515 U.S. 472, 484 (1995), an inmate’s
liberty interests are protected by the Due Process Clause only insofar as a
deprivation of the interest at issue would impose an “atypical and
significant hardship on the inmate in relation to the ordinary incidents of
prison life.”
Relevant here, the Supreme Court has found that “[t]he denial of
prisoner access to a particular visitor ‘is well within the terms of
confinement ordinarily contemplated by a prison sentence,’ Hewitt v. Helms,
459 U.S. 460, 468 (1983), and therefore is not independently protected by the
Due Process Clause.” Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 461 (1989).
Additionally, several courts have held that restrictions on association with
various non-incarcerated individuals did not implicate a protected liberty
interest. See Cherry v. McCaughtry, 49 F. App’x 78, 2002 WL 31408905, at *1
(7th Cir. 2002) (inmate’s temporary inability to visit his fiancée did not
implicate a liberty interest); Billups v. Galassi, 202 F.3d 272, 2000 WL 6200, at
*1 (7th Cir. 2000) (visiting privileges with girlfriend could be permanently
revoked without a hearing “or any other due process protection”). It is
unclear whether the Seventh Circuit or the Supreme Court would come to
a different conclusion when an inmate’s child is involved. See Stojanovic v.
Humphreys, 309 F. App’x 48, 51 (7th Cir. 2009) (rejecting Eighth Amendment
claim based on denial of visitation with daughter, citing Thompson). Other
Circuit courts have not. See Ware v. Morrison, 276 F.3d 385, 388 (8th Cir.
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2002); Cleveland v. Martin, 590 F. App’x 726, 732 (10th Cir. 2014); Charriez v.
Sec’y, Fla. Dep’t of Corr., 596 F. App’x 890, 894 (11th Cir. 2015). Thus,
procedural due process probably affords Flynn no relief because of the
limitations on the types of interests that are protected.
Furthermore, Flynn received at least some process that appears to
comport with constitutional standards. When an inmate’s mail is restricted,
the requirements for procedural due process are satisfied if the inmate
receives notice of the restriction and has a reasonable opportunity to
protest, and if the restriction is reviewed by a third party who did not
participate in the original decision. See Martinez, 416 U.S. at 418–19. As
before, the other effects of the no-contact policy are analyzed under a
different standard, enunciated in Mathews v. Eldridge, 424 U.S. 319, 335
(1976). There, the Supreme Court laid out three factors to determine the
specific dictates of due process applicable to a case: (1) the private interest
at stake; (2) the degree to which more process will make a difference in the
risk of wrongful deprivation; and (3) the cost to the government of
providing more procedural protection. Id.
Here, Flynn received notice of the no-contact order, had a reasonable
opportunity to protest, and had the restriction reviewed by a third party.
After receiving the initial notice, Flynn was permitted to file an inmate
complaint challenging the decision, which he did. Muenchow investigated
the complaint and recommended dismissing it, and the warden thereafter
dismissed the complaint. The complaint was appealed unsuccessfully to the
corrections complaint examiner. At this point, Flynn could have filed a
certiorari lawsuit challenging the decision on his inmate complaint. See
McAtee v. Cowan, 250 F.3d 506, 508 (7th Cir. 2001). He did not.
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Flynn’s exasperation with not being told about the availability of
relief under the ICRS or in state court is immaterial. It might have been
helpful for prison officials to apprise him of the avenues for potential relief,
but Flynn cites no authority establishing that they must do so. What matters
is that he was not denied the opportunity to challenge the no-contact order.
Due process prohibits government interference in certain aspects of life; it
does not impose an affirmative duty on the government to assist
individuals in making their lives better. DeShaney v. Winnebago Cnty. Dep’t
of Soc. Servs., 489 U.S. 189, 196 (1989). This is true even though Muenchow
misspoke about the prison’s authority to review the no-contact order. While
this was an unfortunate and negligent misrepresentation, the Constitution
has nothing to say about it. Cnty. of Sacramento v. Lewis, 523 U.S. 833, 851
(1998) (“The Constitution does not guarantee due care on the part of state
officials[.]”).
Ultimately, Flynn received the relief he sought by filing a second
inmate complaint after obtaining a court order granting him permission to
communicate with his daughter. After he filed the inmate complaint with
this new order, the order was shown to Burns, and Burns told Flynn that
same day that he could resume contact if he abided by the court’s
guidelines. As for Flynn’s claim that Burns ignored the state court order,
after construing the evidence in Flynn’s favor, the worst that can be said is
that Burns missed receipt of the order or forgot about it. This is negligence,
which, again, the Constitution does not remedy. Id.
Considering the Mathews factors, first, as described above, it is
unclear whether inmates have a constitutionally protected liberty interest
attached to contacting their children. As for the second factor, more process
at the outset might not have made a difference in light of the deference to
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complainants which is inherent in the no-contact policy. Once a family
court ordered that communication be permitted, the no-contact order was
lifted. Finally, the cost to the government of providing more protection
weighs heavily against requiring additional procedures. There are
approximately 165 no-contact orders in place at Waupun. Staff do not have
the time, resources, or training to conduct an antecedent adjudication of
each request for such an order.
In sum, then, it appears Flynn received whatever process he may
have been due. At a minimum, the important questions surrounding what
liberty interest is at stake, its strength, and whether the procedures afforded
were adequate, all lead to the conclusion that a reasonable official in Burns’
place would not have known he was violating the law. As a result, the Court
must dismiss all claims for money damages on the basis of qualified
immunity. White, 137 S. Ct. at 551.
3.5
The Official Capacity Claim is Moot
This leaves only Flynn’s official-capacity claim against Burns for
declaratory and injunctive relief. After Flynn filed a motion to amend his
complaint, the Court allowed him to proceed on an official-capacity claim
against Burns to enjoin the application of the no-contact policy to him.
(Docket #17 at 5). That claim is now moot because the no-contact order is
no longer in place, having been lifted on June 15, 2017. Flynn is free to
contact his daughter according to the conditions enumerated in the state
court order.
Flynn suggests that the case is not moot because the prison could reinstate the no-contact restriction. But this speculative fear is not enough to
warrant injunctive relief from a federal court. Implicit in the “case-orcontroversy” requirement of Article III is the principle that “federal courts
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may not give opinions upon moot questions or abstract propositions.”
Worldwide St. Preachers’ Fellowship v. Peterson, 388 F.3d 555, 558 (7th Cir.
2004) (internal quotations omitted). While voluntary cessation of illegal
activity does not necessarily render a case moot, United States v. W.T. Grant
Co., 345 U.S. 629, 632 (1953), “the moving party must still satisfy the court
that injunctive relief is required,” Milwaukee Police Ass’n v. Jones, 192 F.3d
742, 748 (7th Cir. 1999). “‘The necessary determination is that there exists
some cognizable danger of recurrent violation, something more than the
mere possibility which serves to keep the case alive.’” Id. (quoting W.T.
Grant, 345 U.S. at 633). The mere “theoretical possibility” of a repeat
violation is not enough. Walsh v. United States Dep’t of Veterans Affairs, 400
F.3d 535, 537 (7th Cir. 2005).
In this case, Flynn is presently under no restriction on contact with
his daughter other than that specified in the state court’s order, the terms of
which he does not challenge. Other than a generalized worry that the prison
will flout the state court order, Flynn offers no reason to believe that
injunctive relief is necessary or appropriate to guard against future
unjustified no-contact orders.
Indeed, for this Court to enjoin any future no-contact orders may do
more harm than good, as it might interfere with the DOC’s application of
its policies on the mere surmise that a future no-contact order would be
unwarranted. Justifications for injunctions must always be strong, but even
more so in the prison context, where 18 U.S.C. § 3626 requires that any
prospective relief must be “narrowly drawn, exten[d] no further than
necessary to correct the violation of the Federal right, and [be] the least
intrusive means necessary to correct the violation of the Federal right.” 18
U.S.C. § 3626(a). Further, “[t]he court shall give substantial weight to any
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adverse impact on public safety or the operation of a criminal justice system
caused by the relief.” Id. Thus, Congress has more closely circumscribed in
prisoner cases the already limited availability of injunctive relief. Westefer
v. Neal, 682 F.3d 679, 683 (7th Cir. 2012) (“The Prison Litigation Reform Act
circumscribes the scope of the court’s authority to enter an injunction in the
corrections context. . .[to] enforce[e] a point repeatedly made by the
Supreme Court in cases challenging prison conditions: ‘[P]rison officials
have broad administrative and discretionary authority over the institutions
they manage.’”) (quoting Hewitt, 459 U.S. at 467).
Because of this, the Court declines to issue any such relief in this case.
If a future no-contact order arises, the justification for it can be addressed
after a full development of the pertinent facts. However, for the present,
there is no “effectual relief whatever” that this Court can order, therefore
no declaration or injunction can issue, and the case must be dismissed. See
Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992) (citation
omitted); Ashcroft v. Mattis, 431 U.S. 171, 172 (1977) (a request for
declaratory relief, standing alone, does not save an otherwise moot case).
4.
CONCLUSION
Viewing the record evidence in the light most favorable to Flynn, the
Court is constrained to grant summary judgment to Burns on all of Flynn’s
claims. As a result, this case will be dismissed.
Accordingly,
IT IS ORDERED that Defendant’s motion for summary judgment
(Docket #26) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that Plaintiff’s motion for summary
judgment (Docket #38) be and the same is hereby DENIED;
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IT IS FURTHER ORDERED that Plaintiff’s motion to seal certain
exhibits to his summary judgment submissions (Docket #40) be and the
same is hereby GRANTED; and
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED with prejudice.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 29th day of January, 2018.
BY THE COURT:
____________________________________
J. P. Stadtmueller
U.S. District Court
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