Sisney v. Kaemingk et al
Filing
104
ORDER denying 37 Motion for costs of service of process ; denying 47 Motion for costs of service of process; granting 50 Motion for in camera review ; granting 58 Motion to resolve facial challenge ; granting 59 Motion to Compel; denying 60 Motion for Sanctions; granting 61 Motion to Extend Deadlines ; denying 72 Motion for Protective Order; denying as moot 77 Motion to Extend. Signed by US Magistrate Judge Veronica L. Duffy on 5/25/16. (SLW)
UNITED STATES DISTRICT COURT
F ED
MAY 25 2016
DISTRICT OF SOUTH DAKOTA
~~
SOUTHERN DIVISION
CHARLES E. SISNEY,
Plaintiff,
4: 15-CV-04069-LLP
ORDER:
PLAINTIFF'S MOTION FOR COSTS OF
SERVICE OF PROCESS
[DOCKET NOS. 37 & 47]
vs.
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;
PLAINTIFF'S MOTION FOR
IN CAMERA REVIEW
[DOCKET NO. 50]
PLAINTIFF'S MOTION TO
RESOLVE FACIAL CHALLENGE
[DOCKET NO. 58]
PLAINTIFF'S MOTION TO COMPEL
AND DEFENDANTS' MOTION FOR A
PROTECTIVE ORDER
[DOCKET NOS. 59 & 72]
Defendants.
PLAINTIFF'S MOTION FOR
SANCTIONS
[DOCKET NO. 60]
PLAINTIFF'S MOTION TO EXTEND
DISCOVERY DEADLINES
[DOCKET NO. 61]
PLAINTIFF'S MOTION TO STAY
RULING ON SUMMARY JUDGMENT
PENDING RESOLUTION OF
DISCOVERY DISPUTES
[DOCKET NO. 77]
INTRODUCTION
This matter is pending before the court pursuant to plaintiff Charles
Sisney's prose complaint filed under 42 U.S.C. § 1983. See Docket Nos. 1 and
8-1. The court is filing this same day a report and recommendation on the
parties' cross-motions for summary judgment. This order is being filed
separately to resolve various other pending motions before the court. The
matter was referred to this magistrate judge for resolution of pretrial matters
pursuant to the October 16, 2014, standing order of the Honorable Karen E.
Schreier, district judge, and 28 U.S.C. § 636(b)(l)(A) and (B).
FACTS
Mr. Sisney's complaint asserts both facial and as-applied challenges to
the pornography policy adopted by the South Dakota Department of
Corrections (DOC) and applicable at the South Dakota State Penitentiary
(SDSP), where Mr: Sisney resides. Mr. Sisney alleges defendants, by adopting
and applying the policy, have violated his First Amendment free speech rights
and his Fourteenth Amendment due process rights. Each of the four
defendants is sued only in their official capacities. Mr. Sisney seeks only
declaratory and injunctive relief.
DISCUSSION
A.
Motions for Costs of Service of Process
Mr. Sisney, when he filed his lawsuit, sent to each of the defendants a
request that they waive service of the summons pursuant to Federal Rule of
Civil Procedure 4. Rule 4(d)(l) states "[a]n individual, corporation, or
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association that is subject to service under Rule 4(e), (f), or (h) has a duty to
avoid unnecessary expenses of serving the summons. The plaintiff may notify
such a defendant that an action has been commenced and request that the
defendant waive service of a summons." If a defendant who is requested to
waive service of the summons refuses to do so, the defendant must pay the
plaintiffs costs and expenses incurred in actually serving the defendant. See
FED. R. C1v. P. 4(d)(2).
The defendants Mr. Sisney sued are individuals who are state employees
sued in their official capacities. See Docket Nos. 1 and 8-1. As such,
Mr. Sisney's suit against them is actually considered a suit against the state
itself. Kentucky v. Graham, 473 U.S. 159, 165 (1985). "For public policy
reasons, neither governmental agencies nor their employees or officials are
obligated to comply with a request for waiver nor will they be confronted with
bearing the costs of the service of process." Chapman v. NY State Div. for
Youth, 227 F.R.D. 175, 179 (N.D.N.Y. 2005). Instead, service of a state, or a
state employee sued in his or her official capacity, is covered by subsection
m
of Rule 4, not subsections (e), (f), or (h), and requires actual service on the
governor or service upon the governor in the manner directed by state law. See
FED. R. C1v. P. 4(j); Chapman, 227 F.R.D. at 179-80. See also FED. R. CIV. P.
40), Advisory Committee Notes to 1993 Amendments ("[t]he request for waiver
of service may be sent only to defendants subject to service under subdivision
(e), (f), or (h). The United States is not expected to waive service ... [and] the
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same principle is applied to ... entities subject to service under subdivision
0)").
For this reason, Mr. Sisney's motions for costs and expenses because
defendants failed to waive service of the summons [Docket Nos. 37 and 47] are
denied. Defendants are not covered by Rule 4(d)(4).
B.
Motion for In Camera Review
Mr. Sisney moves the court to review in camera the seven books
specifically listed in his complaint (four Pretty Face books, Matisse, Picasso and
Modern Art in Paris, Thrones of Desire, and Pride and Prejudice: The Wild and
Wanton Edition), as well as "a number of periodicals/magazines" rejected by
the SDSP pursuant to the pornography policy.
Mr. Sisney himself, through his mother Esther Sisney, provided the court
with the seven books. The court has examined those books in some detail in
ruling on the parties' cross-motions for summary judgment. In addition,
whenever Mr. Sisney was able to provide the court with defendants' rejection
notice for a specific periodical or magazine, whether one that was to be
delivered to Mr. Sisney or to another inmate, the court attempted to locate each
magazine and examine the page number referenced in defendants' rejection
notice. The court was not able to locate each such periodical, however.
Specifically, the court was able to locate and examine in camera the
following magazines for which Mr. Sisney provided the court with a rejection
notice:
•Esquire, March 2016, page 108 (rejection notice Docket No. 98-1)
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•Esquire, October 2015, page 178 (rejection notice Docket No. 95-10)
•Allure, October 2015, page 168 (rejection notice Docket No. 95-12)
•US Weekly, November 16, 2015, page 18 (rejection notice Docket No.
95-13)
•Cosmopolitan, December 2015, page 156 (rejection notice Docket No.
95-15)
•Cosmopolitan, January 2015, page 70 (rejection notice Docket No.
95-16)
Magazines which the court did not examine in camera because the court could
not locate the magazines include the following:
•Hot Bike, April 2016, page 72 (rejection notice Docket No. 97-1)
•Glamour, June, July, and August, 2013 (rejection notice Docket No.
1-4, pp. 5-7)
•Glamour, December 2015, page 231 (no such page number in magazine)
(rejection notice at Docket No. 95-14)
•Men's Fitness, March 2016, page 90 (rejection notices Docket Nos. 97-2
& 98-2)
•Acme Publications, no date or issue number given (rejection notice
Docket No. 95-11)
The court notes that, by virtue of the fact the magazines listed above
were rejected, neither Mr. Sisney nor the other inmates who received these
rejection notices are able to provide the court with the periodicals in question.
Also, it is not feasible to order defendants to provide the periodicals because
defendants, by virtue of their policy, do not retain rejected materials. See DOC
Correspondence Policy 1.5.D.3, at Docket No. 69-2, page 10, §Bl.
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Therefore, the court grants Mr. Sisney's motion for review in camera
[Docket No. 50] to the extent the court was given, or was able to locate, the
relevant materials.
C.
Motion to Resolve Facial Challenge
The court addressed the merits of Mr. Sisney's facial challenge in its
report and recommendation on the parties' cross-motions for summary
judgment filed this same date. Accordingly, this motion by Mr. Sisney [Docket
No. 58] is granted.
D.
Motion to Compel Answers to Interrogatories/for Protection Order
As discussed in this court's report and recommendation on the parties'
cross-motions for summary judgment, defendants objected to a number of
Mr. Sisney's discovery requests on the grounds that his complaint asserted
only an as-applied challenge to the DOC pornography policy. The court found
otherwise in its report and recommendation. Defendants also interposed
objections to discovery directed to defendant Sharon Reimann on the grounds
that she was not properly named as a defendant in this matter because she
had no involvement in the events at issue. The court notes, however, that
discovery responses were ultimately given by defendant Reimann.
Defendants moved for a protective order [Docket No. 72], some weeks
after their discovery responses were given and immediately after Mr. Sisney
filed his motion to compel. The gist of their motion is that they should not
have to respond to discovery directed toward Mr. Sisney's facial challenge to
the DOC pornography policy.
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The court grants Mr. Sisney's motion to compel [Docket No. 59] and
denies defendants' motion for a protective order [Docket No. 72], but stays the
time for defendants to serve Mr. Sisney with revised discovery responses.
Defendants' objections to discovery pertinent to Mr. Sisney's facial challenge
and to defendant Reimann are overruled. Defendants shall serve Mr. Sisney
with revised discovery responses on all discovery served by Mr. Sisney (see
Docket Nos. 95-1 & 95-2), within 30 days after the date objections to this
court's report and recommendation, if any, are resolved by the district court. If
no objections are made, defendants shall serve their revised discovery
responses on Mr. Sisney within 30 days of the date of this order.
E.
Motion for Sanctions for Discovery Abuses
Mr. Sisney moves for monetary sanctions for defendants' failure to fully
respond to his discovery requests discussed above. He asserts an incomplete
response is not a response at all. He seeks sanctions pursuant to Federal Rule
of Civil Procedure 37(a)(4).
Rule 37(a)(4) provides that for purposes of subdivision (a) of Rule 37, "an
evasive or incomplete disclosure, answer, or response must be treated as a
failure to disclose, answer, or respond." Part (a)(3)(B) of Rule 37 allows a party
to move to compel a response to a discovery request and to seek appropriate
sanctions. If a motion to compel is granted, the court "must" award the
successful moving party's expenses unless the opposing party's nondisclosure,
response, or objection was substantially justified or other circumstances make
it unjust to award expenses. See FED. R. CIV. P. 37(a)(5)(A).
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Under the present circumstances, the court finds an award of sanctions
inappropriate. First, confusion was sown into the record when this court
issued its order requiring service of Mr. Sisney's complaint and summons.
This court stated Mr. Sisney's facial challenge to the DOC policy had already
been determined in Salinas v. Janklow, Civ. No. 99-4204 (D.S.D. June 16,
2003); King v. Dooley, Civ. No. 00-4052 (D.S.D. June 16, 2003); and
Hughbanks v. Dooley, 2012 WL 346673 at *14, n.3 (D.S.D. Feb. 2, 2012).
However, as evidenced by the report and recommendation this court issued
today in this case, neither King, nor Salinas nor Hughbanks resolved the issue
of the constitutionality of the current DOC policy, which differs significantly
from the policy examined in King and Salinas. It was not until after this court
issued its order directing service of the summons and complaint that
Mr. Sisney brought the court's attention to the differences between the policies.
Even then, it took significant effort (exhuming the King court file out of
storage), for the court to actually obtain a copy of the DOC policy at issue in
King and compare it to the current policy. Defendants were understandably
unsure about the status of Mr. Sisney's facial challenge.
Mr. Sisney is correct that this court has no authority to dismiss his facial
challenge outright, nor is there an order in the record suggesting to the district
court that the facial challenge be dismissed. In addition, there was no order
from the district court dismissing the facial challenge. The more prudent
approach for defendants would have been to (1) seek clarification from the
court as to the continued existence of Mr. Sisney's facial challenge or (2)
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provide the discovery and argue later on the merits that the facial challenge
was dead in the water. Defendants did not take the approach which would
have been more prudent under the circumstances, but the court finds itself at
fault for creating confusion. Under these circumstances, the court declines to
award sanctions under Rule 37. Mr. Sisney's motion for sanctions [Docket No.
60] is therefore denied.
F.
Motion to Extend Discovery Deadline
This court's scheduling order set February 12, 2016, as the deadline for
the parties to conclude their discovery in this case. Given the problems
Mr. Sisney experienced in attempting to get discovery responses from
defendants and the necessity of filing a motion to compel, Mr. Sisney asks that
the discovery deadline be extended. The court agrees.
If the parties file objections to this court's report and recommendation, it
will take some time before the district court resolves those objections.
Accordingly, the court grants Mr. Sisney's motion [Docket No. 61], but
conditions that grant on proceedings that may take place before the district
court. If no objections to this court's report and recommendation are filed, the
discovery deadline in this case will be extended to August 31, 2016. A
scheduling order so providing will be filed after the time for objections has
expired. However, if objections are filed, the court will set a new discovery
deadline after the district court resolves those objections-if it is appropriate to
do so at that time.
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G.
Motion to Stay Decision on Summary Judgment Motions Pending
Resolution of Discovery Disputes
Mr. Sisney filed a motion seeking to stay this court's consideration of the
parties' cross-motions for summary judgment until the above-discussed
discovery issues were resolved. See Docket No. 77. The court denies this
motion as moot. Because Mr. Sisney filed his own cross-motion for summary
judgment, it was incumbent upon defendants to resist that motion with
citation to materials in the record including depositions, documents, affidavits
or declarations, discovery responses and stipulations. See
FED.
R. CIV. P.
56(c)(l). The court found, in its report and recommendation, that defendants
failed to support their resistance to Mr. Sisney's summary judgment motion in
several crucial respects, including in their refusal to provide appropriate
discovery responses to Mr. Sisney's discovery requests. These would have
provided information to the court, inter alia, about how defendants define the
word "feature" in the DOC policy; whether any exceptions to the DOC policy
have been made in the last three years for medical, educational or
anthropological purposes; whether any classes are offered to SDSP inmates in
medicine, education, or anthropology; and whether inmates serving life
sentences, including Mr. Sisney, are eligible for such classes.
The court, as it was required to do so under Rule 56, ruled against
defendants for this absence of evidence in the cross-motions for summary
judgment. In addition, the court has now granted Mr. Sisney's motion to
compel (see above), providing resolution of objections by the district court does
not moot further discovery. In short, Mr. Sisney has not been prejudiced by
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this court's consideration of the summary judgment motions without waiting
for additional discovery to take place. For that reason, Mr. Sisney's motion to
stay is denied.
CONCLUSION
Based on the foregoing discussion, it is hereby
ORDERED that Mr. Sisney's motions for costs of service of process
[Docket Nos. 37 & 4 7] are denied. It is further
ORDERED that Mr. Sisney's motion for in camera review [Docket No. 50]
is granted to the extent the court was able to conduct such review. It is further
ORDERED that Mr. Sisney's motion to resolve his facial challenge
[Docket No. 58] is granted. The recommended resolution of that claim is
contained in this court's report filed this date. It is further
ORDERED that Mr. Sisney's motion to compel answers to his
interrogatories [Docket No. 59] is granted; defendants' motion for a protective
order [Docket No. 72] is denied. Defendants shall serve Mr. Sisney with revised
~
responses to his interrogatories within 30 days of today's date if no objections
are made to this court's report and recommendation. If such objections are
made, defendants shall serve revised discovery responses within 30 days of the
date the district court enters an order resolving objections, if appropriate. It is
further
ORDERED that Mr. Sisney's motion for sanctions [Docket No. 60] is
denied. It is further
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ORDERED that Mr. Sisney's motion to extend the discovery deadline
[Docket No. 61] is granted. Depending on further developments before the
district court, this court will issue an amended scheduling order with a new
discovery deadline in the future. Finally, it is
ORDERED that Mr. Sisney's motion to stay consideration of the crossmotions for summary judgment until discovery disputes are resolved [Docket
No. 77] is denied as moot.
NOTICE OF RIGHT TO APPEAL
Pursuant to 28 U.S.C. § 636(b)(l)(A), any party may seek reconsideration
of this order before the district court upon a showing that the order is clearly
erroneous or contrary to law. The parties have fourteen (14) days after service
of this order to file written objections pursuant to 28 U.S.C. § 636(b)(l)(A),
unless an extension of time for good cause is obtained. See FED. R. CIV. P.
72(a); 28 U.S.C. § 636(b)(l)(A).
Failure to file timely objections will result in
the waiver of the right to appeal questions of fact. Id. Objections must be
timely and specific in order to require review by the district court. Thompson
v. Nix, 897 F.2d 356 (8th Cir. 1990); Nash v. Black, 781 F.2d 665 (8th Cir.
1986).
DATED May 25, 2016.
BY THE COURT:
t/~2/J./6VERONICA L. DUFFY
United States Magistrate Judge
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