Nigl et al v. Litscher et al

Filing 31

SCREENING ORDER signed by Judge J.P. Stadtmueller on 3/6/2018. 17 Plaintiffs' Objection to the Magistrate Judge's 8/7/2017 Screening Order (Docket #16) is SUSTAINED in part; 30 Plaintiffs' Motion to Vacate the Magistrate Judge&# 039;s 8/7/2017 Screening Order is DENIED as moot; this Order is now the OPERATIVE Screening Order. Plaintiffs are PERMITTED to proceed on a Fourteenth Amendment due process claim based on denial of the right to marry and a Fourteenth Amendment equa l protection claim based on denial of visitation privileges. Within 60 days, Defendants shall FILE a responsive pleading to the Complaint, as screened in this Order. Plaintiffs' Motions 23 for Preliminary Injunction and 28 for Preliminary Injunction Hearing are DENIED. 27 Plaintiffs' Motions to Appoint Counsel and to Order Transfer to a Different Institution are DENIED. See Order for further details. (cc: all counsel; via mail to Paul M. Nigl and Warden at Redgranite Correctional Institution; via mail to Sandra Johnston) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
PAUL M. NIGL and SANDRA
JOHNSTON,
Plaintiffs,
v.

Case No. 17-CV-925-JPS

JON LITSCHER, MICHAEL
MEISNER, SARA HUNGERFORD,
and ZACHARY SCHROEDER,

ORDER

Defendants.

Plaintiffs Paul M. Nigl (“Nigl”), a prisoner, and Sandra Johnston
(“Johnston”), his fiancée, filed a pro se complaint under 42 U.S.C. § 1983,
alleging their civil rights were violated. (Docket #1). Specifically, the
plaintiffs allege that the defendants violated their rights under the First and
Fourteenth Amendments by not allowing them to marry and by denying
them visitation privileges. Nigl paid the filing fee on July 31, 2017.
The plaintiffs consented to magistrate judge jurisdiction and, on
August 7, 2017, the magistrate judge originally assigned to this case
screened the plaintiffs’ complaint. (Docket #16). The Prison Litigation
Reform Act (“PLRA”) requires the court to screen complaints brought by
prisoners seeking relief against a governmental entity or an officer or
employee of a governmental entity and dismiss a complaint or portion
thereof if the prisoner has raised claims that are legally “frivolous or
malicious,” that fail to state a claim upon which relief may be granted, or

that seek monetary relief from a defendant who is immune from such relief.
28 U.S.C. § 1915A(a) and (b).
Upon screening, the magistrate judge allowed the plaintiffs to
proceed with their claim that the defendants unconstitutionally burdened
their right to marry. (Docket #16 at 4). However, the magistrate judge
dismissed the plaintiffs’ claim that the defendants acted unconstitutionally
by denying visitation. Id. at 4-5. Finally, the magistrate judge denied the
motion for a preliminary injunction that the plaintiffs had filed along with
their complaint. Id.
The plaintiffs then filed an objection to the magistrate judge’s
screening order. (Docket #17). In it, they contend that the magistrate judge
erred both in dismissing their First Amendment claim based on denial of
visitation rights and in failing to screen their Fourteenth Amendment equal
protection claim based on denial of visitation rights. Id.
After the plaintiffs’ objection was filed, the defendants entered the
case and refused to consent to magistrate judge jurisdiction. (Docket #1820). At that point, the case was reassigned to this branch of the Court. The
plaintiffs have since filed several motions now pending before this Court,
including another motion for a preliminary injunction, (Docket #23), a
motion to appoint counsel and to be transferred to another institution,
(Docket #27), a motion for a hearing, (Docket #28), and a motion to vacate
the magistrate judge’s screening order, (Docket #30). The Court addresses
each motion below.
1.

SCREENING OF THE COMPLAINT
Until all parties have an opportunity to consent to magistrate judge

jurisdiction, a magistrate judge presiding over a case may not enter an order
that disposes of an entire case. See Coleman v. Labor & Indus. Review Comm'n,
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860 F.3d 461, 475 (7th Cir. 2017). “Rather than entering final judgments, they
must issue proposed findings of fact and conclusions of law to be reviewed
de novo by the district court.” Id. (quotation omitted). District courts in this
circuit have interpreted Coleman to apply not only to a magistrate’s
proposed dismissal of an entire case, but to dismissal of a single claim as
well. See, e.g., Jones v. Marcus, No. 17-C-1265, 2017 WL 5032719, at *1 (E.D.
Wis. Oct. 31, 2017) (considering magistrate judge’s recommendation that
one of the three claims in the plaintiff’s complaint be dismissed).
As explained above, before this case was reassigned to this branch of
the Court, the magistrate judge entered a screening order dismissing one of
plaintiffs’ claims. (Docket #16). This Court will treat the magistrate’s
screening order as a recommendation and review its factual findings and
legal conclusions de novo. The Court will consider, as part of its review, the
plaintiffs’ objection to the screening order. (Docket #17). The Court will
deny as moot plaintiffs’ motion to vacate the magistrate judge’s screening
order. (Docket #30).
The Court concurs with the magistrate’s recital of the relevant factual
allegations, repeated here for the sake of completeness. Nigl has been a
prisoner since 2001. From 2013 to 2015, Johnston worked as a psychologist
at Waupun Correctional Institution, where she met Nigl. On January 10,
2015, Johnston left her job at Waupun and began to work at the Wisconsin
Resource Center, which is not a Department of Corrections’ (“DOC”)
facility and is therefore not governed by DOC policies. A couple of days
after Johnston left her job at Waupun, Nigl asked his brother to find her
contact information on the internet. Nigl then wrote and called Johnston on
a regular basis. In April 2015, Nigl asked Johnston to marry him, and she
said yes.
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On July 13, 2015, the DOC rehired Johnston for a job at its central
office in Madison, Wisconsin. That day, she tried to submit a fraternization
policy exemption request form so that she could have contact with Nigl.
Johnston’s supervisor, Gary Ankarlo (“Ankarlo”) refused to accept the form
and admonished her. According to plaintiffs, Ankarlo was later demoted
and reassigned, in part, for refusing to accept the form. Despite Ankarlo
refusing to accept the form, plaintiffs continued to have contact with one
another.
On October 31, 2015, Johnston’s position at the central office was
administratively eliminated because of her contact with Nigl. In November
2015, Johnston requested to be added to Nigl’s visitor list. The request was
denied based on DOC policy because Johnston had been an employee of
the DOC within the last twelve months.
In November 2016, Johnston again requested to be added to Nigl’s
visitor list. On November 30, 2016, defendant Sara Hungerford
(“Hungerford”) recommended denial of the request because: 1) the warden
had reasonable grounds to believe that Johnston had attempted to bring
contraband into the institution or that she posed a threat to the safety and
security of visitors, staff, offenders, or the facility; 2) the warden had
reasonable grounds to believe that Nigl’s reintegration into the community
or rehabilitation would be hindered; and 3) the warden had reasonable
grounds to believe that Nigl’s offense history indicated there could be a
problem with the visitation. Defendant Zachary Schroeder, Hungerford’s
supervisor, adopted Hungerford’s recommendation.
On December 8, 2016, plaintiffs submitted a request to be married,
which included written confirmation from an officiant willing to perform
the ceremony. On January 25, 2017, Hungerford recommended denial of the
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request. She stated that “there are reasonable grounds to believe the
marriage poses a threat to the security of the facility or a threat to the safety
of the public, or threatens other legitimate penological interests” and “[t]he
proposed spouse has not been on the visiting list for at least one year and is
not able to demonstrate a longstanding relationship.” (Docket #1 at 5). Nigl
submitted numerous inmate complaints about the denial of his requests for
visitation and marriage. Defendants Jon Litscher and Michael Meisner
affirmed the recommendations that those requests be denied.
Based on these allegations, the plaintiffs propose three claims: (1)
violation of their Fourteenth Amendment right to form an intimate
relationship based on defendants’ refusal to allow them to marry, (2)
violation of their First Amendment right to freedom of association based on
defendants’ refusal to allow visitation, and (3) violation of their Fourteenth
Amendment right to equal protection, as a class of one, based on
defendants’ refusal to allow visitation. (Docket #1 at 8).
The Court agrees with the magistrate’s assessment that the plaintiffs
have stated a Fourteenth Amendment substantive due process claim for
violation of their fundamental right to marry. See Turner v. Safley, 482 U.S.
78, 94-96 (1987); Riker v. Lemmon, 798 F.3d 546, 551 (7th Cir. 2015). Whether
the defendants’ refusal to allow the plaintiffs to marry “is reasonably
related to legitimate penological interests,” and therefore valid, is a
question best left for resolution after discovery and briefing by the parties.
Riker, 798 F.3d at 551.
As to the plaintiffs’ claims regarding visitation, this Court’s analysis
differs somewhat from that of the magistrate judge. First, the plaintiffs are
misguided in their insistence that the First Amendment protects their right
to visitation; their right to visitation, like their right to marry, would arise
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from the Due Process Clause of the Fourteenth Amendment. The
Constitution protects two distinct forms of free association. The freedom of
expressive association arises from the First Amendment and ensures the
right to associate for the purpose of engaging in protected speech or
expressive conduct. Montgomery v. Stefaniak, 410 F.3d 933, 937 (7th Cir. 2005)
(citing Roberts v. U.S. Jaycees, 468 U.S. 609, 617–18 (1984)). That protection is
not applicable here. The freedom of intimate association arises from the Due
Process clause and protects the fundamental right “to enter into and
maintain certain intimate human relationships.” Montgomery, 410 F.3d at
937 (quoting Roberts, 468 U.S. at 617).
The Due Process Clause, then, would be the appropriate theory for
relief, but the plaintiffs do not have a protectable liberty interest for
visitation under the Due Process Clause. The Seventh Circuit has explained
that the Due Process Clause does not independently protect an inmate’s
access to a particular visitor, including a girlfriend or fiancée. 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”); see also Bilka v. Farrey, 447
F. App'x 742, 744 (7th Cir. 2011) (“[W]e have not recognized that [the right
to intimate association] extends to someone who wants to visit a nonrelative in prison.”); Martin v. Snyder, 329 F.3d 919, 921 (7th Cir. 2003)
(noting with approval a district court’s conclusion that even a prisoner’s
fiancée “has no independent right to visit” a prisoner).
And although a state may create a liberty interest in such visitation,
see Billups, 2000 WL 6200, at *1 (citing Ky. Dep't of Corr. v. Thompson, 490 U.S.
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454, 461 (1989)), an inmate’s state-created liberty interests are protected
under the Due Process Clause only insofar as a deprivation of the interest
would impose “atypical and significant hardship on the inmate in relation
to the ordinary incidents of prison life.” Id. (quoting Sandin v. Conner, 515
U.S. 472, 484 (1995)). The denial of a specific visitor’s visiting privileges is
“well within the terms of confinement ordinarily contemplated by a prison
sentence,” Thompson, 490 U.S. at 460, and therefore the restriction on
Johnston visiting Nigl in this case does not inflict an “atypical and
significant hardship.” Thus, the plaintiffs’ visitation privileges do not
implicate a constitutionally protected liberty interest, and they cannot state
a due process claim for denial of those privileges.
Finally, the plaintiffs allege a class-of-one equal protection claim
under the Fourteenth Amendment based on the defendants’ refusal to
allow visitation for them but not for “similarly situated persons.” (Docket
#1 at 8). The magistrate judge did not address plaintiffs’ equal protection
claim in her screening order. In a class-of-one equal protection case, the
plaintiff must prove that he was “intentionally treated differently from
others similarly situated and that there is no rational basis for the difference
in treatment.” Engquist v. Ore. Dep’t of Agr., 553 U.S. 591, 601 (2008). The
Seventh Circuit has implied that it is possible for an inmate, or his wouldbe visitor, to state a class-of-one equal protection claim based on denial of
visitation if the plaintiff alleges that the prison allows visits between
similarly-situated inmates and visitors. See Bilka v. Farrey, 447 F. App’x at
744.
Here, the plaintiffs generally allege in their complaint that the
defendants treated other would-be visitors differently but do not identify
any such visitors. In their objection to the magistrate’s screening order, they
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allege that such comparators might exist and they might be able to identify
them after taking discovery. (Docket #17 at 7-8). They also point to Bilka,
wherein the Seventh Circuit affirmed a district court’s dismissal of an equal
protection claim based on a prison’s refusal to allow visits between an
inmate and a former prison employee who had been caught smuggling
contraband to that inmate. Bilka, 447 F. App’x at 743-44. According to the
plaintiffs, sometime after the Seventh Circuit’s decision in Bilka, the DOC
nonetheless started allowing visits between the inmate and the former
employee from that case. (Docket #17 at 7). In other words, interpreting the
plaintiffs’ submissions generously, they allege that the DOC allows other
rule-breaking former employees to visit inmates but is not allowing the
same for them.
While most circuits require highly specific allegations regarding the
“similarly situated” element of an equal protection claim to validly state
such a claim, the Seventh Circuit has set an extremely low pleading
standard. Geinosky v. City of Chicago, 675 F.3d 743, 747-48 (7th Cir. 2012).
Consequently, though the Court has misgivings about whether the
plaintiffs can point to any similarly situated comparators, it must allow the
claim to proceed at this time.
For the reasons stated above, the Court finds that the plaintiffs may
proceed on the following claims: (1) a Fourteenth Amendment due process
claim based on the denial of their right to marry, and (2) a Fourteenth
Amendment equal protection claim based on the defendants’ denial of
visitation privileges for them but not for similarly-situated persons.
2.

MOTION FOR PRELIMINARY INJUNCTION
Next, the plaintiffs have moved the Court for a preliminary

injunction, allowing them “a one-time visit in order to participate in a brief
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marriage ceremony, pending the adjudication of the defendants’ liability
for unreasonably burdening their right to marry.” (Docket #24 at 1). They
have also requested a hearing on their motion for an injunction. (Docket
#28).
To obtain a preliminary injunction, the plaintiffs must show that: (1)
they are likely to succeed on the merits; (2) they are likely to suffer
irreparable harm in the absence of preliminary relief; (3) the balance of
equities tips in their favor; and (4) an injunction is in the public interest.
D.U. v. Rhoades, 825 F.3d 331, 335 (7th Cir. 2016). A preliminary injunction
is “an extraordinary remedy and is never awarded as of right.” Knox v.
Shearing, 637 F. App’x 226, 228 (7th Cir. 2016). To meet this burden, the
plaintiffs must make a “clear showing that [they are] entitled to such relief.”
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008).
A preliminary injunction is not appropriate in this case. First, the
plaintiffs have alleged enough to pass the low bar of screening, but they
have not shown they are likely to succeed on the merits of their claims. As
explained above, the defendants’ refusal to allow the plaintiffs to marry
does not violate the plaintiffs’ constitutional rights if the refusal “is
reasonably related to legitimate penological interests.” Riker, 798 F.3d at
551. At this stage, the Court cannot say that the plaintiffs are likely to
overcome this hurdle. Further, the Court is not inclined to insert itself into
matters of prison administration, to which it normally accords substantial
deference. See 18 U.S.C. § 3626(a)(2); see also Hewitt v. Helms, 459 U.S. 460,
467 (1983) (“[P]rison officials have broad administrative and discretionary
authority over the institutions they manage.”). For these reasons, the
plaintiffs’ motion for a preliminary injunction will be denied. Their motion
for a preliminary injunction hearing will be denied as well.
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3.

MOTION FOR APPOINTMENT OF COUNSEL AND TO
TRANSFER INSTITUTIONS
The final motion remaining to be resolved at this juncture asks the

Court to appoint counsel for the plaintiffs and to order Nigl’s transfer to
another prison. (Docket #27).
As civil litigants, the plaintiffs have no automatic right to courtappointed counsel. Luttrell v. Nickel, 129 F.3d 933, 936 (7th Cir. 1997). Under
28 U.S.C. § 1915(e)(1), the “court may request an attorney to represent any
person unable to afford counsel.” The court should seek counsel to
represent a plaintiff if: (1) he has made reasonable attempts to secure
counsel; and (2) “‘the difficulty of the case—factually and legally—exceeds
the particular plaintiff’s capacity as a layperson to coherently present it.’”
Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013) (quoting Pruitt v. Mote, 503
F.3d 647, 655 (7th Cir. 2007) (en banc)). Here, the only basis the plaintiffs
present to support their need for counsel is that the warden of the prison
where Nigl is incarcerated can listen into their calls, and they would prefer
to communicate privately about their case, so they would like a lawyer to
be appointed for the purpose of having private conference calls with the
plaintiffs. (Docket #27 at 1). The plaintiffs have not come close to making an
adequate showing that they cannot secure their own counsel or that they
cannot competently litigate this case themselves. Their motion for
appointment of counsel will be denied.
The Court will also deny Nigl’s request, presented in the same
motion, to be transferred to another institution. Nigl believes that
defendant Meisner is harassing and retaliating against him for reasons
related to the facts alleged in the complaint. The matter of transfer between
correctional institutions is generally not within the Court’s purview.
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Instead, this is an administrative matter for the Department of Corrections
to consider. See Capoeira v. Pollard, Case No. 16-CV-224, 2016 WL 1452398,
at *4 (E.D. Wis. Apr. 13, 2016); Lindsey v. Brown, No. 2:13–cv–00068–JMS–
WGH, 2013 WL 5148347, at *1 (S.D. Ind. Sept. 11, 2013). Additionally, Nigl’s
unverified allegations of disciplinary retaliation do not clearly demonstrate
that he in imminent danger of irreparable harm, thereby meriting such
preliminary injunctive relief. See Teamsters Local Unions Nos. 75 & 200 v.
Barry Trucking, 176 F.3d 1004, 1011 (7th Cir. 1999); Christian Legal Soc'y v.
Walker, 453 F.3d 853, 870 (7th Cir. 2006); Douglas v. Lemmon, No. 2:16-cv00368-JMS-DKL, 2016 WL 7034965, at *2 (S.D. Ind. Dec. 2, 2016) (denying
motion for transfer to another prison based on alleged retaliation for
bringing lawsuit). This request will, therefore, be denied.
Accordingly,
IT IS ORDERED that the plaintiffs’ objection to the magistrate
judge’s screening order (Docket #17) be and the same is hereby
SUSTAINED in part as reflected in this Order. This Order is now the
operative Screening Order in this matter;
IT IS FURTHER ORDERED that the plaintiffs’ motion to vacate the
magistrate judge’s screening order (Docket #30) be and the same is hereby
DENIED as moot;
IT IS FURTHER ORDERED that the plaintiffs’ motion for a
preliminary injunction (Docket #23) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that the plaintiffs’ motion for a
preliminary injunction hearing (Docket #28) be and the same is hereby
DENIED;

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IT IS FURTHER ORDERED that the plaintiffs’ motion for
appointment of counsel and to order Nigl’s transfer to a different institution
(Docket #27) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that, pursuant to the informal service
agreement between the Wisconsin Department of Justice and this Court,
Defendants shall file a responsive pleading to the complaint, as screened by
the Court in this Order, within sixty (60) days of receiving electronic notice
of this Order; and
IT IS FURTHER ORDERED that a copy of this Order be sent to the
warden of the institution where the inmate is confined.
Dated at Milwaukee, Wisconsin, this 6th day of March, 2018.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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