Sisney v. Kaemingk

          Submitted: October 19, 2017

          Appeals from United States District Court for the District of South Dakota - Sioux Falls

          Before GRUENDER and BENTON, Circuit Judges, and TUNHEIM, ^[1] District Judge.

          GRUENDER, CIRCUIT JUDGE.

         Inmate Charles Sisney brought this pro se civil rights action against four South Dakota corrections officials, asserting both facial and as-applied challenges to the State's prison-pornography policy. The district court construed Sisney's facial challenges to two distinct provisions of the policy as a single attack on the entire policy, and it granted his motion for summary judgment on this score. After invalidating the policy on its face, the court proceeded to resurrect a prior version of the policy and used it to resolve all but one of the as-applied challenges in Sisney's favor. The prison officials now appeal the partial grant of summary judgment to Sisney, and Sisney cross appeals. For several reasons, we find it prudent to decide whether the policy was constitutional as applied to Sisney before reaching his facial challenges. However, the district court erred in its as-applied analysis, so we vacate the summary judgment order and remand for it to consider, in the first instance, Sisney's as-applied claims based on the version of the policy he actually challenged and then to determine whether facial relief remains necessary.

         I.

         Sisney has been serving a life sentence at the South Dakota State Penitentiary ("SDSP") since 1997. During this time, he has brought several civil rights actions, including two pro se suits in South Dakota state court and a free-exercise challenge that was part of a consolidated appeal before this court. See Sisney v. State, 754 N.W.2d 639 (S.D. 2008); Sisney v. Best Inc., 754 N.W.2d 804 (S.D. 2008); Van Whye v. Reisch, 581 F.3d 639 (8th Cir. 2009). With the benefit of this experience, Sisney now raises a variety of challenges to the 2014 version of the South Dakota Department of Correction ("SDDOC") pornography policy ("2014 Policy").^[2]

         In relevant part, the 2014 Policy "prohibits the purchase, possession and attempted possession and manufacturing of pornographic materials by offenders housed in [SDDOC] institutions." SDDOC, Policy No. 1.3.C.8, Pornography (2014). The term "pornographic material" is defined to include "books, articles, pamphlets, magazines, periodicals, or any other publications or materials that feature nudity or 'sexually-explicit' conduct . . . [as well as] photographs, drawings, etchings, paintings, or other graphic depictions of nudity or sexually explicit material." Id. "Nudity, " in turn, is defined as "a pictorial or other graphic depiction where male or female genitalia, pubic area, buttocks or female breasts are exposed, " while "sexually explicit" covers both images and writings that depict actual or simulated sexual acts. Id. Any material that qualifies as pornography under these definitions-including both incoming and outgoing correspondence-is treated as contraband and may be confiscated by prison staff. Id. Moreover, prisoners found in possession of pornography are subject to disciplinary action. Id. Inmates who disagree with a given classification, however, are entitled to appeal the decision through an administrative process. Id.

         Acting pursuant to the 2014 Policy, SDSP staff rejected a number of items that were mailed to Sisney. The prohibited materials included two erotic novels, Thrones of Desire and Pride and Prejudice: The Wild and Wanton Edition, as well as four Japanese manga comics from a series called Pretty Face, nine images of Renaissance artworks depicting nudity, a book on Matisse and Picasso, and a poster featuring the iconic Coppertone suntan-girl advertisement. Sisney went through the prison grievance process to challenge the rejection of each of these items, but he was denied relief with only brief explanations as to why the materials were withheld.

         In April 2015, having exhausted his administrative remedies, Sisney filed a pro se complaint pursuant to 42 U.S.C. § 1983. His subsequent amended complaint included six claims: (1) a facial challenge to the policy "as it completely bans all sexually explicit material, both pictorial and written"; (2) a facial challenge to the policy "as it bans not only [Sisney] to receive sexually explicit communications, but also prohibits [him] from sending out sexually explicit communications to those in the general public"; (3) a due process claim not raised on appeal; (4) an as-applied challenge concerning the SDSP's "overly broad and exaggerated interpretations of pornography, nudity and sexually explicit material"; (5) an as-applied challenge to the rejection of the three books and four Pretty Face comics; and (6) an as-applied challenge to the rejection of the nine Renaissance images and the Coppertone poster. In his prayer for relief, Sisney requested declaratory relief as to the constitutionality of the ban on all "sexually explicit" material and the outgoing-mail regulation, declaratory relief concerning his as-applied challenges, injunctive relief requiring the SDDOC to prohibit only "traditional forms of pornography and obscene materials, " and injunctive relief ordering the prison to allow him to receive the rejected items.

         Following a limited period of discovery, the corrections officials moved for summary judgment as to all claims. Beyond contesting Sisney's asserted "constitutional right to receive sexually explicit communications, " the officials cited a variety of district and circuit court opinions describing the general penological interests served by prison bans on sexually explicit materials, including institutional security, rehabilitation, and the prevention of sex crimes in prison, as well as a reduction in sexual harassment directed at staff. They then emphasized that the district court had found these same interests sufficient to uphold the 2000 version of the SDDOC pornography policy ("2000 Policy") in King v. Dooley, CIV. 00-4052 (D.S.D. June 16, 2003), suggesting that this decision was dispositive as to Sisney's "facial challenge" because the 2014 Policy is "essentially the same." The officials provided no explanation, however, for modifying the policy and never suggested that the general penological interests from the cases they cited actually motivated the adoption of the 2014 Policy. Shortly thereafter, Sisney countered with his own motion for summary judgment. In it, he noted that the SDDOC policy had undergone significant revision since it was upheld in King. For example, the 2014 Policy banned written sexually explicit materials, expanded the definition of nudity, and extended the policy to outgoing correspondence. Sisney argued that these and other changes rendered the 2014 Policy unconstitutionally overbroad, even considering the legitimate interests promoted by other prison pornography-censorship policies.

         The district court referred the cross motions for summary judgment to a magistrate judge, who issued a thorough report and recommendation ("R&R") that found largely in favor of Sisney. First, the magistrate judge concluded that the 2014 Policy "is much more sweeping and comprehensive than its predecessor which was analyzed in King." Accordingly, the R&R rejected the defendants' claim that King was dispositive as to Sisney's "facial challenge"^[3] to the 2014 Policy. The magistrate judge next considered the merits of the facial claims, evaluating the regulations on incoming mail under the Supreme Court's four-factor balancing test from Turner v. Safley, 482 U.S. 78 (1987), and the regulations on outgoing mail under the stricter test from Procunier v. Martinez, 416 U.S. 396 (1974). Based on these separate analyses, the R&R concluded that "the current [2014] policy must be declared facially invalid" in its entirety because the SDDOC provided no justification for the policy beyond emphasizing its similarity to the 2000 Policy upheld in King. Rather than concluding there, however, the magistrate judge proceeded to the as-applied challenges, offering no explanation for doing so beyond an unsupported assertion that the "DOC policy may be enforced insofar as it comports with the policy approved of in King." Thus, applying the superseded 2000 Policy, the magistrate judge recommended granting the defendants' motion for summary judgment as to the Pretty Face comics and the Coppertone poster, while granting Sisney's motion for summary judgment as to all of the other rejected materials.

         Given the breadth of objections to the R&R, the district court reviewed the entire report de novo, ultimately adopting the recommendations and findings in nearly all respects. The court first observed that "[t]he basic claim of the Defendants is that the current policy really is no different than the [2000] policy . . . approved in King, " and it agreed with the magistrate judge's rejection of this argument based on the "significant" differences between the two policies. The district court then held that the "new and overly broad policy goes far beyond what is necessary and is unconstitutional." With respect to the as-applied challenges, the court voiced concern about the R&R's unique approach of resurrecting and applying the 2000 Policy but seemingly accepted it nonetheless:

[The R&R's] discussion of what is or is not censored under King is dicta and is only used to demonstrate some of the differences between the policies approved in King and the policies now before the Court. The R&R does not treat the King discussion as dicta. This Court does consider the King discussions to be dicta because this Court does not believe that what there is of King policy in the present policy can be abstracted from the present policy to then apply those abstractions ...