Sisney v. Kaemingk et al

Filing 87

ORDER for defendants to clarify the record as to their summary judgment exhibits. Signed by US Magistrate Judge Veronica L. Duffy on 2/11/2016. (CG)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
CHARLES E. SISNEY,
Plaintiff,
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;

4:15-CV-04069-LLP
ORDER FOR DEFENDANTS TO
CLARIFY THE RECORD AS TO ITS
SUMMARY JUDGMENT EXHIBITS

Defendants.

This matter is before the court on plaintiff Charles E. Sisney’s complaint
pursuant to 42 U.S.C. § 1983. This matter has been referred to this magistrate
judge for handling pretrial matters pursuant to 28 U.S.C. § 636(b)(1) and the
Honorable Karen E. Schreier’s standing order of October 16, 2014.
Liberally construed, Mr. Sisney’s complaint alleges the defendants have
deprived him of his First Amendment right to Free Speech. Specifically,
Mr. Sisney alleges the South Dakota Department of Corrections (SDDOC) has
enacted a pornography policy (Policy 1.3.C.8) which is (1) unconstitutional on
its face; and (2) has been applied in an overbroad manner. The stated purpose
of the pornography policy is to “prohibit the purchase, possession, and

attempted possession and manufacturing of pornographic materials by
offenders housed in [the Department of Corrections].” See Policy 1.3.C.8,
Section II.
Now pending before the court is defendants’ motion for summary
judgment on Mr. Sisney’s complaint. See Docket No. 67. In connection with
that motion, defendants have filed a number of exhibits under seal, including
numerous examples of materials defendants allege fall under the prison’s antipornography policy. See Docket Nos. 69 and 70.
Accompanying defendants’ motion is a certificate of service signed by
defense counsel. See Docket No. 67 at p.3. That document is a certification by
counsel, as an officer of the court, that all documents were electronically filed.
Id. Furthermore, because Mr. Sisney is not an authorized user of this court’s
electronic docketing system, counsel certified that he has mailed “the foregoing
document” [sic] to Mr. Sisney. Id. No mention is made in counsel’s
certification to the court that any documents he filed with the court
electronically were excepted from the documents provided to Mr. Sisney. Id.
However, from the multiple pleadings Mr. Sisney has filed with the court,
and from the text of defendants’ memorandum, the court infers that defense
counsel may not have served Mr. Sisney with all of the exhibits to defendants’
motion for summary judgment. Accordingly, the court seeks clarification from
defense counsel on this matter. It is, therefore, hereby
ORDERED that defense counsel shall, within 10 days, file a pleading
with the court stating whether Mr. Sisney was served with all summary
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judgment documents, including exhibits, that defendants filed electronically
with the court. If not, then it is further
ORDERED that defense counsel shall, within 10 days, specify which
documents or exhibits, by number and name, were not provided to Mr. Sisney
when service of the summary judgment motion was made. Defense counsel
shall also file an amended certificate of service accurately reflecting what was
really served on Mr. Sisney and what was not served. Furthermore, it is
ORDERED that, if certain exhibits were not served on Mr. Sisney,
defense counsel shall address whether redacted exhibits can be provided to
Mr. Sisney of any of the withheld exhibits.
DATED February 11, 2016.
BY THE COURT:

VERONICA L. DUFFY
United States Magistrate Judge

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