Hughbanks v. Dooley et al

Filing 94

ORDER granting 68 Motion to Seal Document. Signed by Chief Judge Karen E. Schreier on 5/3/2011. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
KEVIN L. HUGHBANKS,
Plaintiff,
vs.
ROBERT DOOLEY, Warden, Mike
Durfee State Prison, a/k/a Bob
Dooley;
TIM REISCH, Cabinet Secretary,
SD DOC;
SUSAN JACOBS, Associate
Warden, Mike Durfee State Prison;
TAMI DEJONG, Unit Coordinator,
MDSP;
RANDY STEVENS, Sco. Property
Officer, MDSP; and
NICHOLE ST. PIERRE, Sco.
Property Officer, MDSP;
Defendants.

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Civ. 10-4064-KES

ORDER GRANTING MOTION
TO FILE DOCUMENTS UNDER
SEAL FOR IN CAMERA
INSPECTION

Plaintiff, Kevin Hughbanks, filed a civil rights lawsuit alleging that
defendants violated his First Amendment rights by denying him two books,
Dirty Spanish and The Quotable Bitch. Defendants move to file portions of
the confiscated books under seal for in camera inspection. Docket 68.
Hughbanks opposes this motion.
Defendants argue that if the documents are included as exhibits in
the affidavits filed with the court and served on Hughbanks, then
Hughbanks would have copies of the very materials that defendants refused

to provide him due to prison policy. Hughbanks asserts that he will not be
able to effectively resist defendants’ motion for summary judgment or argue
that the banned materials are not sexually explicit if defendants are
permitted to file them under seal for in camera review. Docket 72.
Hughbanks states “for the plaintiff to adequately observe his Fourteenth
Amendment right to Due Process without an attorney representing him, he
must be able to view the evidence.” Id.1 Defendants respond that they have
provided a summary and even quoted some of the prohibited material
submitted for in camera review, thereby giving Hughbanks sufficient
information to respond to their motion for summary judgment.
A similar issue arose in Lindell v. McCaughtry, No. 01-C-209-C, 2003
U.S. Dist. LEXIS 24576 (W.D. Wis. Oct. 7, 2003). In Lindell, a prison inmate
sued the warden of a maximum security prison for denying him an issue of

1

In support of this argument, Hughbanks quotes Cofone v. Manson, 409
F. Supp. 1033, 1041 (D. Conn. 1976). “Since the prisoner will not have even
seen the offending issue, he cannot be expected to marshal arguments in favor
of its admission without the assistance of someone familiar with the material.”
Id. But Cofone did not deal with the issue of whether an inmate is entitled to
utilize the discovery process to receive materials prison officials have deemed
violate an institution’s policies. Cofone was a challenge to a particular prison’s
process for appealing the denial of a publication; the process in question
required an inmate to submit several issues of the publication to have it preapproved before it was admitted into the institution. Cofone applied the more
stringent test from Procunier v. Martinez, 416 U.S. 396 (1974), not the more
deferential reasonableness test that the Supreme Court held should be applied
with respect to prisons. See Turner v. Safley, 482 U.S. 78 (1987). Thus, Cofone
does not apply.
2

Pagan Revival, a magazine that the warden found advocated racial hatred
and presented a danger to institutional security. Id. at *2. During the
litigation, the warden submitted the rejected issue to the court for in camera
review. Id. at *18. The court reasoned that “allowing plaintiff to obtain
through litigation the publication that the institution has determined to
pose a threat to institutional security would render the institution’s review
system superfluous and would encourage inmates to file lawsuits as a way
to circumvent the institution’s security procedures.” Id. While the inmate
would not be able to “oppose defendant’s motion as effectively as he would
like,” an in camera review did not unduly prejudice the inmate because the
defendants summarized the offending material accurately and provided
specific examples of language that resulted in the warden banning the
publication. Id. The Seventh Circuit Court of Appeals affirmed, noting that
the liberal policy behind the discovery rules did not mean that the inmate
had an absolute right to everything relevant to his case. Lindell v.
McCaughtry, 115 Fed. App’x 872, 876 (7th Cir. 2004), cert. denied 543 U.S.
1171 (2005).
Defendants have provided Hughbanks with a summary of the denied
materials and specific quotations that led defendants to conclude that the
material was sexually explicit and detrimental to his rehabilitation as a sex
offender. Thus, while Hughbanks may not be able to view the books he was

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denied, he has sufficient information to challenge defendants’ reasons for
denying him the books. Allowing Hughbanks to obtain these materials
through discovery would undermine prison policy and encourage inmates to
file lawsuits in order to obtain banned materials. Accordingly, it is
ORDERED that defendants’ motion to file documents under seal for in
camera inspection (Docket 68) is granted.
Dated May 3, 2011.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
CHIEF JUDGE

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