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Sisney v. Kaemingk

United States District Court, D. South Dakota, Southern Division

September 29, 2016

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.

          ORDER

          Lawrence L. Piersol United States District Judge.

         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 Plaintiffs 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 books are hot good literature and they certainly are filled with sophorhoric 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 ...


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