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Sisney v. Kaemingk

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

November 10, 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.

          MEMORANDUM OPINION AND ORDER GRANTING STAY

          Lawrence L. Piersol, United States District Judge.

         Pursuant to Federal Rule of Civil Procedure 62(c), Defendants seek to stay this Court's Order of September 29, 2016, pending their appeal to the Eighth Circuit. The portions of the Order which Defendants seek to stay are the rulings that the South Dakota Department of Corrections anti-pornography policy is unconstitutional on its face, and unconstitutional as applied to certain written materials and a Coppertone® advertisement. Plaintiff has not responded to the Request for Stay.

         BACKGROUND

         Plaintiff is an inmate at the South Dakota State Penitentiary (SDSP). His claims in this § 1983 case involve challenges to the South Dakota Department of Corrections (DOC) anti- pornography policy applicable to its penal institutions. This is DOC policy 1.3.C..8 and it provides in pertinent part as follows:

The Department of Corrections (DOC) prohibits the purchase, possession, and attempted possession and manufacturing of pornographic materials by offenders housed in its institutions.
* * *
Pornographic Material: 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 publication or material that features, or includes photographs, drawings, etchings, paintings, or other graphic depictions of nudity or sexually explicit material.
Nudity: "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: "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.
Offender: For purposes of this policy, an offender is an inmate (in the custody of the South Dakota DOC institutional system) ...

See Docket No. 1-2, p.l. Plaintiffs complaint alleges both facial challenges and as-applied challenges to the DOC pornography policy. See Docket No. 8-1. The Court granted summary judgment in Plaintiffs favor on the facial challenge, finding the new policy overly broad and unconstitutional. The Court also granted Plaintiffs motion for summary judgment on his as-applied challenges to the Coppertone® advertisement and to the Thrones of Desire book, the Pride and Prejudice: The Wild and Wanton Edition book; the Michelangelo pictures, and Matisse, Picasso and Modern Art in Paris book. The Court granted Defendants' Motion for Summary Judgment on the Pretty Face books.

         The Defendants seek to have these rulings stayed in order to maintain the status quo so that the DOC may maintain control over inmate access to pornography in prison pending the outcome of their appeal.

         DISCUSSION

         Federal Rule of Civil Procedure 62(c) provides that "[w]hile an appeal is pending from an interlocutory order or final judgment that grants, dissolves, or denies an injunction, the court may suspend, modify, restore, or grant an injunction on terms for bond or other ...


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