Sisney v. Kaemingk

15 F.4th 1181

Charles E. SISNEY, Plaintiff - Appellee

v.Denny KAEMINGK, in his official capacity as the South Dakota Secretary of Corrections; Darrin 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

National Coalition Against Censorship, Amicus on Behalf of Appellee(s)

No. 20-2460

United States Court of Appeals, Eighth Circuit.

Submitted: June 17, 2021

Filed: October 15, 2021

Rehearing and Rehearing En Banc Denied November 22, 2021

Counsel who presented argument on behalf of the appellant was Caroline Anne Srstka, AAG, of Sioux Falls, SD. The following attorney appeared on the appellant brief; Frank E. Geaghan, AAG, of Pierre, SD.

Counsel who presented argument on behalf of the appellee and appeared on the brief was Steven R. Morrison, of Grand Forks, ND.

The following attorney appeared on the amicus brief; Eugene Volokh, of Los Angeles, CA; and Alberto J. De Deigo Carreras, student at the University of California, Los Angeles School of Law.

Before GRUENDER, BENTON, and STRAS, Circuit Judges.

GRUENDER, Circuit Judge.

Charles E. Sisney brought as-applied and facial challenges to the South Dakota State Penitentiary's pornography policy (the "Policy") under the First and Fourteenth Amendments, naming as defendants four South Dakota corrections officials in their official capacities. The district court granted in part and denied in part the parties’ motions for summary judgment, and the defendants appeal. We affirm in part and reverse in part.

I.

Sisney is an inmate at the South Dakota State Penitentiary. In 2015, prison officials rejected several items in Sisney's incoming mail. These items included four issues of a comic-book series entitled Pretty Face ; a reprint of the iconic Coppertone advertisement featuring a puppy pulling at a little girl's swim bottoms; two erotic novels, Thrones of Desire and Pride and Prejudice: The Wild and Wanton Edition ; a fine-art book entitled Matisse, Picasso and Modern Art in Paris ; and nine pictures of Renaissance artwork featuring nudity, including Michelangelo's "David" and the Sistine Chapel. Prison officials based their decision to reject these items on the Policy, which prohibits inmates from receiving pornographic material. The Policy defines "pornographic material" as follows:

Includes books, articles, pamphlets, magazines, periodicals, or any other publications or materials that feature nudity or "sexually explicit" conduct. Pornographic material may also include books, pamphlets, magazines, periodicals or other publications or material that features, or includes photographs, drawings, etchings, paintings, or other graphic depictions of nudity or sexually explicit material.

"Nudity" means a pictorial or other graphic depiction where male or female genitalia, pubic area, buttocks or female breasts are exposed. Published material containing nudity illustrative of medical, educational or anthropological content may be excluded from this definition.

"Sexually Explicit" includes written and/or pictorial, graphic depiction of actual or simulated sexual acts, including but not limited to sexual intercourse, oral sex or masturbation. Sexually explicit material also includes individual pictures, photographs, drawings, etchings, writings or paintings of nudity or sexually explicit conduct that are not part of a book, pamphlet, magazine, periodical or other publication.

After exhausting his administrative remedies, Sisney sued the defendants in federal court, claiming that the Policy was unconstitutionally overbroad on its face and, in any event, unconstitutional as applied to the items enumerated above. Both parties moved for summary judgment. The district court held that the Policy was unconstitutionally overbroad on its face and then appeared to adjudicate Sisney's as-applied challenges against a prior version of the Policy. See Sisney v. Kaemingk , CIV 15-4069, 2016 WL 5475972 (D.S.D. Sept. 29, 2016), vacated , 886 F.3d 692 (8th Cir. 2018).

On appeal, a panel of this court vacated the district court's summary-judgment order and remanded. Sisney v. Kaemingk (Sisney I ), 886 F.3d 692, 694 (8th Cir. 2018). We explained that the proper course under Board of Trustees of State University of New York v. Fox , 492 U.S. 469, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989), was first to resolve Sisney's as-applied challenges against the version of the Policy in effect and then to consider Sisney's overbreadth challenge only if at least one of Sisney's as-applied challenges failed. Sisney I , 886 F.3d at 698-99.

On remand, the district court rejected Sisney's as-applied challenges to the Pretty Face comics and the Coppertone advertisement but sustained Sisney's as-applied challenges to the other items. Turning to Sisney's overbreadth challenge, the district court concluded that the Policy was overbroad but that it was possible to remedy its constitutional defects without enjoining its enforcement in toto . The district court explained that the Policy remained enforceable to the extent that it overlapped with a hypothetical amended version of the Policy that the district court drafted. The district court's amended definition of "pornographic material" reads as follows, with deletions in strikethrough and insertions in underline:

Includes books, articles, pamphlets, magazines, periodicals, or any other publications or materials that feature nudity or "sexually explicit" conduct. Pornographic material may also include books, pamphlets, magazines, periodicals or other publications or material that features, or includes photographs, drawings, etchings, paintings, or other graphic depictions of nudity or sexually explicit material. Featured: is defined as a publication which routinely and regularly featured pornography, or in the case of one-time issues, promoted itself based on pornographic content. The depiction of nudity of minors is prohibited.¹

"Nudity" means a pictorial or other graphic depiction where male or female genitalia, pubic area, buttocks or female breasts are exposed. Published material containing nudity illustrative of medical, educational or anthropological content may be excluded from this definition.

"Sexually Explicit" includes written and/or pictorial, graphic depiction of actual or simulated sexual acts, including but not limited to sexual intercourse, oral sex or masturbation. Sexually explicit material also includes individual pictures, photographs, drawings, etchings, writings or paintings of nudity or sexually explicit conduct that are not part of a book, pamphlet, magazine, periodical or other publication.

The Pretty Face comics and the Coppertone advertisement fell within the scope of this hypothetical amended version of the Policy. Therefore, because the district court enjoined enforcement of the Policy only to the extent that it did not overlap with this hypothetical amended version, the district court's remedy for the Policy's alleged overbreadth did not affect which of the challenged materials Sisney would be permitted to receive.

The defendants appealed, challenging the district court's adverse rulings on Sisney's as-applied challenges and the district court's conclusion that the Policy was overbroad. The defendants did not appeal the district court's remedy for the alleged overbreadth. Nor did Sisney, who did not file a cross-appeal, even though he had urged the district court to enjoin enforcement of the Policy in toto after concluding that it was overbroad.

After filing their notice of appeal, the defendants asked us to stay the district court's order. We denied this request. Alleging that the defendants have nevertheless refused to comply with the district court's order, Sisney has filed two motions asking us to sanction the defendants for contempt of court.

II.

We review the district court's grant of summary judgment de novo . Sisney I , 886 F.3d at 697.² "When a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Turner v. Safley , 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). The Supreme Court has articulated a two-step, four-factor test to determine when a regulation that impinges on inmates’ constitutional rights is "reasonably related to legitimate penological interests." Id. The first factor operates as a threshold condition that the regulation must satisfy to pass constitutional muster. See Amatel v. Reno , 156 F.3d 192, 196 (D.C. Cir. 1998). Assuming the regulation satisfies this threshold requirement, the court must determine the regulation's constitutionality by balancing the remaining three factors. See id. at 201-03.

The first factor is that "there must be a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it." Turner , 482 U.S. at 89, 107 S.Ct. 2254 (internal quotation marks omitted). When the regulation in question "restrict[s] inmates’ First Amendment rights," then it must also "operate[ ] in a neutral fashion" to further this interest. Id. at 90, 107 S.Ct. 2254. This means that the proffered mechanism by which the regulation promotes the legitimate government interest must be "unrelated to the suppression of expression." See Thornburgh v. Abbott , 490 U.S. 401, 415, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989). For example, although "inmate rehabilitation" is a legitimate government interest, Dawson v. Scurr , 986 F.2d 257, 261 (8th Cir. 1993), a prison may not censor "literature advocating racial purity" on the ground that exposure to racist ideas inhibits rehabilitation, McCabe v. Arave , 827 F.2d 634, 638 (9th Cir. 1987). But a prison may censor depictions of nude or scantily clad minors on the ground that consumption of such images inhibits rehabilitation of sex...