Sisney v. Kaemingk et al

Filing 128

MEMORANDUM OPINION AND ORDER granting 122 Motion to Stay. Order 116 is stayed pending appeal. Signed by U.S. District Judge Lawrence L. Piersol on 11/10/16. (SLW)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

*

CHARLES E. SISNEY,

*

CIV 15-4069

Plaintiff,
vs.

*

MEMORANDUM OPINION AND

DENNY KAEMINGK,in his

*

ORDER GRANTING STAY

official capacity as the South Dakota
Secretary of Corrections;

*
*

DARIN YOUNG,in his official capacity
as the Warden ofthe South Dakota

*
*

State Penitentiary;
SHARON REIMANN,in her official

*
*

capacity as an SDSP designated

*

Mailroom Officer; and
CRAIGMOUSEL,inhis offieial

*
*

capacity as an SDSP designated
Property Officer,

*
*

'

^

*

Defendants.

*
*

******************************************************************************

Pursuantto Federal Rule ofCivil Procedure 62(c),Defendants seek to stay this Court's Order

ofSeptember 29,2016,pending their appeal to the Eighth Cireuit. The portions ofthe Order whieh
Defendants seek to stay are the rulings that the South Dakota Department of Correetions anti-

pornography poliey is uneonstitutional 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 elaims 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 purehase, possession, and
attempted possession and manufacturing of pornographic materials by offenders
housed in its institutions.
* *

Poriiographic Material: Includes books, artieles, pamphlets, magazines,periodicals,
or any other publieations 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, etehings, paintings, or .other graphie depietions of nudity or sexually
explicit material.

.

Nudity: "Nudity" means a pietorial or other graphic depiction where male or female
genitalia, pubic area, buttoeks or female breasts are exposed. Published material
eontaining nudity illustrative ofmedieal,edueational or anthropological content may
be excluded from this definition.

Sexually Explicit: "Sexually Explieit" includes written and/ or pictorial, graphic
depiction of actual or simulated sexual acts, including but not limited to sexual
intereourse, oral sex or masturbation. Sexually explicit material also includes

individual pictures, photographs,drawings,etchings, writings.or paintings ofnudity
or sexually explicit conduct that are not part of a book, pamphlet, magazine,
periodical or other publieation.

Offender: For purposes ofthis policy, an offender is an inmate(in the eustody ofthe
South Dakota DOC institutional system)...

See Docket No. 1-2, p.l. Plaintiffs eomplaint alleges both faeial ehallenges and as-applied
ehallenges to the DOC pornography policy. S^ Docket No. 8-1. The Court granted summary

judgment in Plaintiffs favor on the faeial challenge, finding the new poliey overly broad and
unconstitutional. The Court also granted Plaintiffs motion for summaryjudgment on his as-applied

ehallenges to the Coppertone® advertisement and to the Thrones of Desire book, the Pride and
Prejudice: The Wild and Wanton Edition book;the Miehelangelo pictures,and Matisse,Pieasso and
Modem Art in Paris book. The Court granted Defendants' Motion for Summary Judgment on the
Prettv 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 ^butcome

oftheir appeal.

j
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 cprt may
suspend, modify, restore, or grant an injunction on terms for bond or other terms that secure the
opposing party's rights." Fed.R.Civ.P. 62(c).
r

The Court must consider four factors to determine whether Defendants have made a

sufficient showing for this Court to grant a stay ofthe Order,pending appeal. These factors are(1)
whether the movant has made a showing of likelihood of success on the merits,(2) whether the
movant has made a showing ofirreparable injury ifthe stay is not granted,(3)whether granting the

stay would substantially harm the other parties, and(4) whether granting the stay would serve the
public interest. Brady v. NationalFootballLeague,640 F.3d 785,789(8th Cir.2011)(citing//i/fon
V. Braunskill, 481 U.S. 770, 776 (1987)); Dakota, Minnesota & E. R.R. Corp. v. Schieffer, 742 F.

Supp.2d 1055, 1060 (D.S.D. 2010). The Eighth Circuit has emphasized a balancing of equities
approach to determine whether to grant a stay pending appeal. See Walker v. Lockhart,678 F.2d 68,
70-71 (8th Cir. 1982)(the court maintains a flexible approach when applying the factors and
balancing the equities between the parties, and the court "need not engage in detailed analysis of
[movant's] probability of success on the merits"). The Eighth Circuit has noted that the stay
procedure of Rule 62(c) is "to make any order appropriate to preserve the status quo or the
effectiveness ofthejudgment subsequently to be entered." MesabilronCo. v. Reserve Min. Co.,268
F.2d 782,783(8th Cir. 1959).

The first factor is a difficult one for Defendants to meet because this Court has already

decided the merits and found in favor ofPlaintiffon most but not all ofPlaintiffs claims. Regarding

the second factor,irreparable harm, Defendants state that the following problems would result ifthe
DOC is not allowed to continue to enforce its anti-pornography policy:

[W]ithout a stay,the State would be forced to allow Plaintiffto receive the "written"
pornography in question as well as the "Coppertone" advertisement. Defendants
would be required to do so despite the factthatthe court has recognized that"inmates
sold, rented and bartered materials in contravention of other DOC policies." Doc.

105, p. 31. As noted by the court in King v. Dooley, CIV. No. 00-4052-LLP,"the
bartering of pornographic materials, even among those prohibited from possessing
pornography, has been a problem in the past." Doc. 34, p. 7. Thus, Defendants
would have no control whatsoever as to which inmates would have access to those
materials once allowed inside the walls ofthe state prison. Access to such materials
could be detrimental to the rehabilitation of certain inmates (i.e., sex offenders)

confined within the prison. That is particularly true with regard to the "Coppertone"
advertisement. As noted in the Report and Recommendation issued on May 25,

2016,"this is precisely the type ofimage one would hope to keep out ofthe hands of
a child sex offender." Doc. 105, p. 85.

See Docket No. 124, p. 4-5. There is no other policy in place to control inmate access to

pornography, and the Court agrees that it is necessary to maintain the anti-pornography policy
pending appeal so that there is some anti-pornography policy in place in order to keep control. In
addition,granting a stay would create no appreciable harm to Plaintiff. Moreover,the public interest
is best served by maintaining the status quo with regard to pornography in the prison until the merits
including what anti-pornography policy is appropriate are decided on appeal. Whether or not
Defendants prevail on appeal,the public interest is best served by maintaining control in the prison
over materials in the prison that are claimed to be pornographic.
The Court concludes that the balance ofequities favors a stay ofthe Court's rulings in order

to maintain the status quo pending final determination of the issues on appeal. Accordingly,
IT IS ORDERED that Defendants' motion to stay, doc. 122, is granted, and this

Court's Order issued on September 29, 2016, doc. 116, is stayed in the following
respects:

1.

The aspect of the Order, doc. 116, finding the DOC's Anti-Pornography
Policy unconstitutional on its face is stayed pending appeal; and

2.

The portion ofthe Order, doc. 116, granting Plaintiffs motion for summary
judgment on his as-applied challenge 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
Modem Art in Paris book, is stayed pending appeal.

1^

Dated this (.C/ day of November,2016.
BY THE COURT:

rence L. Piersol

United States District Judge
ATTEST:

JOSEPH HAAS,CLERK
mmoA

Deputy "