Sisney v. Kaemingk
| Decision Date | 29 June 2020 |
| Docket Number | CIV 15-4069 |
| Citation | 469 F.Supp.3d 903 |
| Parties | Charles E. SISNEY, Plaintiff, 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; and Craig Mousel, in his official capacity as an SDSP designated Property Officer, Defendants. |
| Court | U.S. District Court — District of South Dakota |
Steven R. Morrison, Pro Hac Vice, Morrison Law Practice, Grand Forks, ND, for Plaintiff.
Frank E. Geaghan, Attorney General of South Dakota, Pierre, SD, for Defendants.
AMENDED MEMORANDUM OPINION AND ORDER
This case is upon remand from Sisney v. Kaemingk , 886 F.3d 692 (8th Cir.2018). Subsequently the case has been briefed and argued to the Court. Sisney makes both as applied and facial challenges to the current South Dakota Department of Corrections (DOC) pornography policy. Count V deals with Defendants’ rejection of seven specific publications which were to be delivered to Mr. Sisney, those being: Pretty Face Manga Comics, Volumes 3, 4, 5, 6, a book entitled Thrones of Desire, and another book, Pride and Prejudice: The Wild and Wanton Edition, and an art book entitled Matisse, Picasso and Modern Art in Paris. Count VI deals with Defendants’ rejection of nine pictures:
The Report and Recommendation details the factual history of the case and those factual findings are adopted unless stated otherwise.
The 2014 DOC "Pornography" policy in question "prohibits the purchase, possession and attempted possession and manufacturing of pornographic material by offenders in its institutions."
The definitions are:
In reviewing the 2014 DOC Policy, the policy as applied is what must be considered. Even though the current policy does still contain the word "feature," the policy as applied is that one word or one image is enough to get a book or other publication banned even though nudity or pornography is not "featured" in the publication or the image.
This Court previously approved another prison publication review policy in 2003. King v. Dooley , 4:00-cv-04052-LLP, Docket No. 34 (D.S.D. June 16, 2003). How the King policy would apply to the publications in question is dicta. The only consideration of the King policy is to dismiss the Defendants’ claim that the King policy is essentially the same as the 2014 policy now under consideration and as an alternative policy. See Report and Recommendation detailing the differences, pp 36-41 (Doc. 105). In brief, the King policy did not apply to written materials nor to the manufacturing of images or objects. The King policy under its definition of "features" looked at the item in question in its entirety rather than, for example, censoring an entire book because of one page in the book even if that page was present not for its prurient interest but instead was a part of the narrative in the theme of the book. An example is the book Some Luck by Pulitzer prize winning author Jane Smiley. The book is a 395 page novel published in 2014 as the first of a trilogy dealing with the life of an Iowa farm family starting in 1920. The book was selected by the South Dakota Humanities Council for the One Book South Dakota program and thus read by a variety of reading groups. A couple of short scenes in the narrative theme of the maturation of Frank, one of the principal characters. The scenes would get the book banned under the current policy as it is applied. Those scenes are an integral, albeit brief part of the book and a part of Frank's early experiences and not presented for any prurient interest.
An as applied as well as a facial challenge is being analyzed where there has been no separate justification for the 2014 policy put forth by the Defendants other than broad general arguments. Court approval of the King policy is no basis for the approval of the present policy as they differ significantly. In addition, Defendants have not shown another approved policy in another jurisdiction that is as restrictive as this policy as it is applied. Turner analysis is applicable to both as applied and facial challenges. Thornburgh v. Abbott , 490 U.S. 401, 403, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989) (); Bahrampour v. Lampert , 356 F.3d 969, 975 (9th Cir. 2004). The ultimate Turner reasonable relation to legitimate penological interests test will be applied to each item. Turner provides four factors for the reasonable relations test. The factors have the same analysis for each of the items except as otherwise noted. The four factors need not be each given the same weight in each analysis.
Under the first Turner factor, the governmental objective underlying the regulations is legitimate and neutral. The pornography policy is related to a governmental objective, but not reasonably so except in the instances of Manga Comics and Coppertone®.
As for the second factor, there is no alternate means by which prisoners can exercise their First Amendment rights unless prisoners were evaluated individually and provided access according to their profile. For example, prisoners inclined to violence would get no violence related materials. See Murchison v. Rogers , 779 F.3d 882 (8th Cir. 2015) (). Child sex offenders would not get Coppertone® type ads or other similar materials. Although such specific limitations are possible, it is not reasonable for the courts to require that level of specificity from prison administrators. As a result, there are no reasonable alternate means by which prisoners could exercise their First Amendment rights.
Third, what impact would the accommodation of Mr. Sisney's asserted constitutional right have on others (guards and inmates) inside the prison. Given the dearth of evidence in the record, it is difficult to envision any impact upon others except for the Manga Comics and the Coppertone® ad. Each could be trading stock to some. The Manga Comics could be bartered for their sexual themes and could give rise to new ideas with which to taunt female employees.
Fourth, whether there are obvious, easy alternatives whose existence show that the regulation in question is not reasonable, but is an "exaggerated response" to prison concerns. An easy alternative, by no means the only one, is the King policy that this Court approved of in 2003. No reasons have been shown for this strict departure from that policy. No showing has been made that the King policy caused problems in the penitentiaries. The banning, for example, of the Matisse Picasso and Modern Art in Paris book is a clear example of an exaggerated response as is the banning of the paintings and sculpture of Michelangelo. By contrast, the banning of Manga Comics and the Coppertone® ad are not exaggerated responses.
The comic books are not good literature or even close to it, but that is not the question. The comic books have sophomoric situations which do have a sexual tone. The third comic book is mainly about a teenage boy who gets a female face transplant after a motor vehicle accident and is living life as a teenage girl at a girl's high school. Book 3 contains approximately 200 pages, dealing mostly with situations where the boy is nearly found out to be a boy or gets to hug girls. On page 142 a man tries to sell the boy a pair of fake silicone breasts he can affix to his person. The fake breasts are depicted bare with exposed nipples, but they are torso only. On page 155, the boy is trying out an all body female suit covered with a skimpy one-piece bathing suit when a snake attacks him, crawling between the covered breasts of the suit. The snake is drawn to look like a penis. The female body suit is subsequently pictured holding a limp snake dripping some liquid. Books 4, 5 and 6 are similar to Book 3. Pornographic images do not preponderate in the books but the ongoing sexual tone does preponderate. The voyeurism, other sexual content, and the continued sexual tone which are the feature of these juvenile books do warrant granting Defendants’ Motion for Summary Judgment as to the Pretty Face manga comics. Pursuant to Turner the Court is to conduct an "independent review of the evidence." Murphy v....
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