Sisney v. Kaemingk, CIV 15-4069

• Decision Date: 29 September 2016
• Docket Number: CIV 15-4069
• 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

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.

CIV 15-4069

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION

September 29, 2016

ORDER

This matter is before the Court on the Report and Recommendation ("R&R") of Magistrate Judge Veronica Duffy dated May 25, 2016, Doc. 105. In the R&R, Magistrate Judge Duffy recommended that the Court grant in part and deny in part Plaintiff's Motion for Summary Judgment, Doc. 91, and grant in part and deny in part Defendants' Motion for Summary Judgment, Doc. 67. All parties filed timely objections to the R&R. According to statute, the Court must conduct a de novo review of any portion of the Magistrate Judge's opinion to which specific objections are made. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ.P. 72(b). Given the breadth of the objections, the Court conducted a de novo review of the entire R&R. The Court adopts the R&R with certain exceptions that are stated below. Any objection that is not specifically granted is denied.

BACKGROUND

The R&R extensively details the factual history of Sisney's claims and this Court will not repeat that history in full. In brief, Sisney is an inmate at the South Dakota State Penitentiary in Sioux Falls where he is serving a life sentence for first degree murder. Sisney makes both facial challenges and as-applied 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:

• Paradise by Michelangelo

• The Expulsion from the Garden by Michelangelo (Sistine Chapel ceiling painting, bay 4)

• Statute of David by Michelangelo

• Bronze The Creation of Adam and Eve by Lorenzo Ghiberti

• The Fall and Expulsion from the Garden of Eden by Michelangelo (Sistine Chapel ceiling painting)

• Study of the Resurrection of the Dead by Michelangelo

• Paradise Bronze by Michelangelo

DISCUSSION

Manga Comics

Plaintiff objects to the Report and Recommendation in part because the R&R found that the four Pretty Face manga comics would be censored under King. The Magistrate Judge concluded they presented a close question and that the four manga comic books contained a "sly ongoing joke of a sexual nature." The Court concludes that is not an inaccurate description in part of those four manga comic books but that is not all that they are about. There is no doubt that these comic booksare not good literature and they certainly are filled with sophomoric situations which do have a sexual tone. The books do not feature actual nudity or sexually explicit conduct so the fact that there is a sly ongoing joke which has sexual overtones is not enough to get the books censored under King. However, any 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 to the as-applied challenges. Nonetheless, this Court has applied the as-applied challenges under the King policy.

The King policy previously approved by this Court required sexually-explicit conduct or depictions of nudity or sexually-explicit conduct for a book to be censored. The King policy defined Nudity as "a pictorial depiction where genitalia or female breasts are exposed." Sexually Explicit is defined as "a pictorial depiction of actual or simulated sexual acts including sexual intercourse, oral sex or masturbation." The four comics are subject to being banned, as they were, under the current policy. Contrary to the R&R, this Court finds that even though it is a close question, in a de novo review, the four Pretty Face manga comics should not be banned under King. However, this difference of opinion on these comics points out one of the difficulties on these issues. If these four comics were before this Court on an appeal, it would not be a de novo review. Instead, the finding of the administrative body is entitled to some deference. Given that deference, this Court would not uphold a challenge to a ban of the four manga comics if applying the King standards. Some deference to the administrative body is practically necessary so that the courts are not reviewing every censored item. However, the standard to be applied by the administrative body has to be a constitutional standard, in contrast to the present standard.

OTHER OBJECTIONS

The Plaintiff's objections raised the question of what does it take for female breasts to be exposed. Although that question is not answered in the King policy, one approach was theWisconsin prison regulations considered in Aiello v. Litscher, 104 F.Supp. 2d 1068, 1072 (W.D. Wise. 2000). That regulation prohibited "the showing of the female breast with less than fully opaque covering of any portion below the top of the areola or nipple,".

Another objection by the Plaintiff involves the Coppertone® advertisement which the Magistrate Judge said is a close question but would be banned under the King policy. This Court does not find that the Coppertone® ad promoted itself based upon the nudity content of the ad. Instead, the Court views the Coppertone® ad based upon the "cuteness" of the ad. The Magistrate believes that the ad is "precisely the type of image one would hope to keep out of the hands of a child sexual offender," R&R, p. 85. The Court agrees with that observation but the Coppertone® ad meets neither the nudity nor the sexually explicit definition of the King policy. "Buttocks" being added to the King definition of nudity would meet that issue and provide for banning as was done in the current policy.

The King policy seems to make the best of a difficult question by approaching the problem of appropriate limitations on access and communication with...