United States District Court, D. South Dakota, Southern Division
CHARLES E. SISNEY, Plaintiff,
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.
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
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
The Department of Corrections (DOC) prohibits the purchase,
possession, and attempted possession and manufacturing of
pornographic materials by offenders housed in its
* * *
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
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.
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.
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 ...