Charles E. Sisney Plaintiff- Appellee
v.
Denny Kaemingk, in his official capacity as the South Dakota Secretary of Corrections; Darin Young, in his official capacity as the Warden of the South Dakota State Penitentiary; Sharon Reimann, in her official capacity as an SDSP designated Mailroom Officer; Craig Mousel, in his official capacity as an SDSP designated Property Officer Defendants - Appellants American Civil Liberties Union of South Dakota Amicus Curiae National Coalition Against Censorship Amicus on Behalf of Appellee(s) Charles E. Sisney Plaintiff- Appellant
v.
Denny Kaemingk, in his official capacity as the South Dakota Secretary of Corrections; Darin Young, in his official capacity as the Warden of the South Dakota State Penitentiary; Sharon Reimann, in her official capacity as an SDSP designated Mailroom Officer; Craig Mousel, in his official capacity as an SDSP designated Property Officer Defendants - Appellees
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 ...