Maday v. Dooley et al

Filing 209

ORDER granting 204 Motion for Summary Judgment. Signed by U.S. District Judge Karen E. Schreier on 8/20/2020. (Mailed to Stanley Maday) (JLS)

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UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
STANLEY J. MADAY,
Plaintiff,
vs.
MIKE GROSSHUESCH, Correctional
Officer at Mike Durfee State Prison,
Official Capacity; and NICOLE ST.
PIERRE, Correctional Officer at Mike
Durfee State Prison, Official Capacity,

4:17-CV-04168-KES
ORDER GRANTING ST. PIERRE AND
GROSSHUESCH’S RENEWED
MOTION FOR SUMMARY JUDGMENT

Defendants.
Plaintiff, Stanley J. Maday, a prisoner currently in custody at the Mike
Durfee State Prison (MDSP), originally filed this action against numerous
Wisconsin and South Dakota defendants alleging claims under 42 U.S.C.
§ 1983 and Title II of the Americans with Disabilities Act. Docket 1. The court
granted defendants’ motions for summary judgment on all claims, except
Maday’s injunctive relief claims against defendants Nicole St. Pierre and Mike
Grosshuesch in their official capacity regarding the 2015 and 2016 Sports
Illustrated Swimsuit Edition magazines (SI magazines). Docket 199. Following
that decision, St. Pierre and Grosshuesch filed a renewed motion for summary
judgment on the injunctive relief claims. Dockets 204. Maday did not oppose
the renewed motion. For the following reasons, the court grants St. Pierre and
Grosshuesch’s renewed motion for summary judgment.

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FACTUAL BACKGROUND
A comprehensive overview of the facts giving rise to this litigation is
provided by the opinion issued by this court on September 30, 2019. See
Docket 199. The following will summarize the portions of those facts most
relevant to the issues currently under consideration and will continue to view
all facts in a light most favorable to Maday as the nonmoving party.1
The 2014 version of the South Dakota Department of Corrections
(SDDOC) pornography policy (2014 policy) prohibits inmates from purchasing,
possessing, or attempting to possess “pornographic materials.” Docket 126-100
at 1. In pertinent part, the 2014 policy provides as follows:
Pornographic Material:
Includes books, articles, pamphlets, magazines, periodicals, or any
other publications or materials that feature nudity or “sexually
Under Local Rule 56.1, motions for summary judgment “must be
accompanied by a separate, short, and concise statement of the material facts
as to which the moving party contends there is no genuine issue to be tried.”
D.S.D. Civ. LR 56.1A. And typically, “[a]ll material facts set forth in the
movant’s statement of material facts will be deemed to be admitted unless
controverted by the opposing party’s response to the moving party’s statement
of material facts.” D.S.D. Civ. LR 56.1D. St. Pierre and Grosshuesch, however,
did not file a statement of material facts with their renewed motion; instead,
they filed a brief in support of the motion, as well as two accompanying
affidavits. Dockets 205-207. Maday did not file anything in opposition to the
renewed motion. Presumably, both sides wish to rely on their statements of
material facts filed in conjunction with the original motion for summary
judgment. Docket 140; Docket 172. Out of fairness and because neither side
filed a statement of material facts with respect to the renewed motion as
required by local rule, the court will assume any new facts raised in the
renewed motion and accompanying affidavits are admitted but that Maday
continues to dispute facts previously objected to. See generally Interstate Power
Co. v. Kansas City Power & Light Co., 992 F.2d 804, 807 (8th Cir. 1993) (“Even
if a motion for summary judgment on a particular claim stands unopposed, the
district court must still determine that the moving party is entitled to judgment
as a matter of law on that claim.”).
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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.
Id. Pornographic materials are considered contraband, and “[a]ny offender
found in violation of [the] policy may be subject to disciplinary action.” Id. at 12. The warden or superintendent of each SDDOC institution is directed to
“ensure procedures are in place to prevent pornographic material from being
brought into the institution.” Id. at 2. The 2014 policy provides that “[a]ll
incoming and outgoing correspondence or publications depicting pornography
or containing pornographic material will be rejected . . . .” Id. An administrative
appeals process is available to offenders who disagree with decisions by prison
staff that a particular item satisfies the definition of pornography. Id.
Back in 2013, Maday was convicted of three counts of first-degree sexual
assault of a child in Wisconsin state court. Docket 1 ¶ 4; see Wisconsin v.
Maday, 892 N.W.2d 611 (Wis. 2017). Maday, a former Wisconsin corrections
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officer, is currently in custody at the MDSP, a SDDOC facility, because
Wisconsin believed it would be best for Maday not to serve his sentence at the
prison where he was formerly employed. Docket 1 ¶ 4; see Docket 140 ¶ 1.
South Dakota and Wisconsin have an agreement that allows for such an
arrangement. Docket 140 ¶ 1.
In February of 2015, Nicole St. Pierre, a mailroom supervisor at MDSP,
denied Maday access to the February 2015 Sports Illustrated Swimsuit Edition
magazine. Docket 140 ¶ 184; Docket 172 ¶ 184; Docket 126-95. St. Pierre
attested that the 2015 edition magazine was denied on the grounds that it was
“ ‘sexually explicit’ and contained ‘nudity,’ ” as prohibited by the 2014 policy.
Docket 135 ¶ 10. The following year, Mike Grosshuesch, a different mailroom
supervisor at the prison, denied Maday access to the February 2016 version of
the Sports Illustrated Swimsuit Edition magazine. Docket 140 ¶ 184; Docket
172 ¶ 184. Grosshuesch denied the 2016 edition magazine on the grounds that
it contained sexually explicit material and nudity, again in violation of the 2014
policy. Docket 140 ¶ 184; Docket 172 ¶ 184.
After exhausting his administrative remedies, Maday filed suit seeking
monetary damages and injunctive relief on the grounds that St. Pierre and
Grosshuesch violated his First Amendment rights by confiscating the
magazines. Docket 1 ¶¶ 138-39, 154. He sued St. Pierre and Grosshuesch in
their individual and official capacities. Id. ¶¶ 27-28. This court granted
summary judgment in favor of St. Pierre and Grosshuesch based on qualified
immunity with respect to Maday’s monetary damages claims for the SI
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magazines. Docket 199. In denying the motion for summary judgment on the
injunctive relief claims against St. Pierre and Grosshuesch in their official
capacities, this court reasoned:
Qualified immunity only protects defendants from claims for
monetary relief in their individual capacity. Hafer v. Melo, 502 U.S.
21, 25 (1991). “[S]tate officials may be sued in their official capacity
for equitable relief.” Grantham v. Trickey, 21 F.3d 289, 295 (8th Cir.
1994). Defendants failed to address Maday’s injunctive relief claim
against defendants in their official capacity. Defendants did not
provide any argument on whether a constitutional right exists in
general, did not provide any discussion on the supporting rationale
to South Dakota DOC’s pornography policy, and they did not
discuss the Turner factors. See Turner v. Safley, 482 U.S. 78, 89-91
(1987). Thus, Maday’s injunctive relief claim as to defendants in
their official capacity survives summary judgment.
Id. at 46-47. Citing their belief that “they were [not] at liberty[] in their ‘motion
based on the qualified immunity defense,’ to address Maday’s claim for
injunctive relief,” St. Pierre and Grosshuesch renewed their motion for
summary judgment and included arguments addressing whether Maday is
entitled to the injunctive relief he has requested. Docket 205 at 4-5.
LEGAL STANDARD
Pro se filings must be liberally construed. Erickson v. Pardus, 551 U.S.
89, 94 (2007) (citation omitted). Even with this construction, “a pro se [filing]
must contain specific facts supporting its conclusions.” Martin v. Sargent, 780
F.2d 1334, 1337 (8th Cir. 1985) (citing Kaylor v. Fields, 661 F.2d 1177, 1183
(8th Cir. 1981)); Ellis v. City of Minneapolis, 518 F. App’x 502, 504 (8th Cir.
2013). Summary judgment on all or part of a claim is appropriate when the
movant “shows that there is no genuine dispute as to any material fact and the

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movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see
also In re Craig, 144 F.3d 593, 595 (8th Cir. 1998). The moving party can meet
its burden by presenting evidence that there is no dispute of material fact or
that the nonmoving party has not presented evidence to support an element of
its case on which it bears the ultimate burden of proof. Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986).
Once the moving party has met this burden, “[t]he nonmoving party may
not ‘rest on mere allegations or denials, but must demonstrate on the record
the existence of specific facts which create a genuine issue for trial.’ ” Mosley v.
City of Northwoods, 415 F.3d 908, 910 (8th Cir. 2005) (quoting Krenik v. Cty. Of
Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995)). “Further, ‘the mere existence of
some alleged factual dispute between the parties is not sufficient by itself to
deny summary judgment. . . . Instead, the dispute must be outcome
determinative under prevailing law.’ ” Id. at 910-11 (quoting Get Away Club,
Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir. 1992)). The facts, and inferences
drawn from those facts, are “viewed in the light most favorable to the party
opposing the motion” for summary judgment. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting United States v. Diebold,
Inc., 369 U.S. 654, 655 (1962)).
DISCUSSION
In sum, the order issued by this court on September 30, 2019, held that
St. Pierre and Grosshuesch were protected by qualified immunity from claims
for monetary damages because there was no “clearly established” right for
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Maday to receive the SI magazines at the time they were confiscated. Docket
199 at 46, 50 (adopting the magistrate judge’s qualified immunity analysis with
respect to the 2015 magazine). In that order, this court found that Maday “does
not challenge the pornography policy on its face, but rather, as applied to the
censorship of this specific magazine.” Docket 199 at 43. This conclusion is
supported by the fact that Maday’s complaint and briefs allege that the DOC
pornography policy “as applied” to these specific magazines is an
unconstitutional violation of his First Amendment rights. Docket 1 ¶¶ 96, 97;
Docket 173 at 4-5; Docket 174 at 15-16.
St. Pierre and Grosshuesch now contend that they are entitled to a
judgment in their favor on the official capacity claims for the same reasons that
they were successful on the personal capacity claims. Maday did not respond
to St. Pierre and Grosshuesch’s renewed motion for summary judgement.
Additionally, although Maday did file a motion asking the court to reconsider
portions of its September 30, 2019, opinion, Maday did not object to or seek
clarification of that portion of the opinion that characterized his challenge to
the pornography as an as-applied challenge rather than a facial challenge
under the First Amendment. Thus, the court will only consider whether the
DOC pornography policy as applied to these specific magazines is an
unconstitutional violation of Maday’s First Amendment rights.
One of the most basic principles embodied in First Amendment is that
“[a]s a general matter . . . government has no power to restrict expression
because of its message, its ideas, its subject matter, or its content.” Brown v.
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Entm't Merchants Ass’n, 564 U.S. 786, 790-91 (2011) (quoting Ashcroft v. Am.
Civil Liberties Union, 535 U.S. 564, 573 (2002)). There are, however, exceptions
to that principle. Id. The Supreme Court held in Turner v. Safley, 482 U.S. 78,
84 (1987), that “[p]rison walls do not form a barrier separating prison inmates
from the protections of the Constitution,” including those protections offered by
the First Amendment. But as the Eighth Circuit recently noted, “Turner
acknowledged that ‘courts are ill equipped to deal with the increasingly urgent
problems of prison administration and reform.’ ” Sisney v. Kaemingk, 886 F.3d
692, 697 (8th Cir. 2018) (quoting Turner, 482 U.S. at 84).
Cases dealing with the constitutional rights of prisoners “require courts
to strike a balance between two competing principles.” Id. When examining
constitutional claims brought by people who are incarcerated, courts are
instructed to exercise “a policy of judicial restraint,” because “[r]unning a
prison is an inordinately difficult undertaking that requires expertise, planning,
and the commitment of resources, all of which are peculiarly within the
province of the legislative and executive branches of government.” Turner, 482
U.S. at 84-85. Turner counseled additional restraint where, as here, “a state
penal system is involved[.]” Id. at 85 (citing Procunier v. Martinez, 416 U.S. 396,
405 (1974)). Given these interests, “a lesser standard of scrutiny is appropriate
in determin[ing] the constitutionality of prison rules.” Id. at 81.
Turner’s ultimate holding was that “when a prison regulation impinges
on inmates’ constitutional rights, the regulation is valid if it is reasonably

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related to legitimate penological interests.” Id. at 89. There are four factors
relevant to whether a prison regulation satisfies this test:
(1) whether there is “a valid, rational connection between the prison
regulation and the legitimate governmental interest put forward to
justify it”; (2) “whether there are alternative means of exercising the
right that remain open to prison inmates”; (3) “the impact
accommodation of the asserted constitutional right will have on
guards and other inmates, and on the allocation of prison resources
generally”; (4) and whether there exist alternatives to accommodate
the prisoner with a de minimis cost.
Murchison v. Rogers, 779 F.3d 882, 887 (8th Cir. 2015) (quoting Turner, 482
U.S. at 89-91).
In the First Amendment context, prisoners may raise both as-applied and
facial challenges to prison policies. Sisney, 886 F.3d at 697 (citing Thornburgh
v. Abbott, 490 U.S. 401, 403 (1989)). In an as-applied First Amendment
challenge as is raised herein, the court is instructed to apply the Turner factors
outlined above to “consider ‘whether a ban on these particular items is
reasonably related to a legitimate penological objective.’ ” Murchison, 779 F.3d
at 887 (quoting Williams v. Brimeyer, 116 F.3d 351, 354 (8th Cir. 1997)).
This court conducted an independent review of three versions of the
2016 magazine and the 2015 magazine. See generally Murchison, 779 F.3d at
888 (holding that the court must conduct an independent review of the
evidence to verify there has not been an exaggerated response to prison
concerns). The 2016 edition “contains several pictures of exposed female
breasts, i.e. the entire breast is uncovered and only the nipple is covered by
material or the models’ hands. And in some pictures, nipples are visible

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through sheer clothing, i.e. swimsuit top made of chain, wet light-colored
material, mesh tops.” Docket 199 at 44 (citations omitted). The 2015 edition
“reveals multiple photographs of fully exposed female buttocks . . . [and] female
breasts fully revealed through sheer material . . . .” Docket 188 at 49. Both the
2015 and 2016 magazines feature a sexually explicit theme throughout.
Because it has been determined that the content in both SI magazines is
substantially similar, the court will treat both editions as one in the same for
the purposes of the as-applied analysis. In determining the reasonableness of
the 2014 policy as it was applied to Maday’s SI magazines, the court must first
consider “whether there exists a ‘valid, rational connection between the prison
regulation and the legitimate governmental interest put forward to justify it.’ ”
Murchison, 779 F.3d at 887 (quoting Turner, 482 U.S. at 89). “[T]he
governmental objective must be a legitimate and neutral one . . . without
regard to the content of the expression,” but “courts must be deferential to the
prison officials’ views of what material may be inflammatory.” Id. (citing Murphy
v. Mo. Dep't of Corr., 372 F.3d 979, 986 (8th Cir. 2004)).
In support of their renewed motion, St. Pierre and Grosshuesch have
argued that the prohibition of this particular type of magazine within the
prison walls serves a number of valid objectives: “rehabilitation of inmates,
maintenance of order and security within the institution and the prevention of
sexual harassment of correctional staff.” Docket 206 ¶ 21. These are legitimate
government objectives. See Dawson v. Scurr, 986 F.2d 257, 260 (8th Cir. 1993)
(holding that security is a valid penological goal, and rehabilitation is a
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legitimate objective); see also Thornburgh, 490 U.S. at 415 (affirming that
security is central to all other corrections goals). And with regard to the
neutrality requirement, there is no evidence in the record to suggest that St.
Pierre or Grosshuesch’s censorship of the SI magazines was done for any other
purpose than to serve the objectives described above. Dawson, 986 F.2d at 261
(holding neutrality requirement satisfied where policy furthers government
interest unrelated to suppression of expression).
With the objectives underlying the 2014 policy deemed legitimate and
neutral as applied, the issue becomes whether censorship of the SI magazines
within the prison is rationally related to those objectives. This “does not require
‘actual proof that a legitimate interest will be furthered by the challenged
policy,’ only that the interest being served and the policy have an ‘objectively
rational’ connection.” Ortiz v. Fort Dodge Corr. Facility, 368 F.3d 1024, 1027
(8th Cir. 2004) (quoting Herlein v. Higgins, 172 F.3d 1089, 1091 (8th Cir.
1999)). Maday argues that prohibition of his magazines is “unnecessary”
because any connections between allowing the magazines into the prison and
possible impacts on prison security are “arbitrary.” Docket 1 at 39-40. But that
is not the standard. See 2 Michael B. Mushlin, Rights of Prisoners § 6:12 (5th
ed. 2019) (“That there are studies that find to the contrary does not matter
since the government does not have to be ‘right’ when it bans sexually explicit
material, it only has to act ‘reasonably.’ ”). Given the sexually explicit nature of
the content featured throughout the SI magazines, it was reasonable for St.

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Pierre and Grosshuesch to believe banning the magazines would serve
legitimate governmental interests.
Maday further contends that no such rational relationship exists because
in the past other inmates allegedly were able to access images in violation of
the 2014 policy through their prison issued tablets. Docket 174 at 16. This
argument also is without merit. That the government’s policy to protect its
interests can occasionally be undermined by defiance does not necessarily
render the connection between the policy and its goal irrational. While
Murchison held that “[t]he existence of similar material within the prison walls
may serve to show inconsistencies in the manner in which material is censored
such as to undermine the rationale for censorship,” there is no evidence in the
record that St. Pierre or Grosshuesch have been inconsistent in their
prohibition of SI magazines in the prison. 779 F.3d at 890.
The next question is whether there are alternative means for Maday to
exercise his asserted constitutional right. Id. at 891. Here, “courts should be
particularly conscious of the measure of judicial deference owed to corrections
officials in gauging the validity of the regulation,” and “ ‘the right’ in question
must be viewed sensibly and expansively.” Id. (citing Turner, 482 U.S. at 90;
Thornburgh, 490 U.S. at 417). The question is not whether Maday has an
available alternative to view and read these particular SI magazines, but
whether there are similar means of expression adequately available to him.
Thornburgh, 490 U.S. at 418.

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St. Pierre and Grosshuesch have offered evidence that inmates at
SDDOC facilities are able to access a variety of books and magazines on “a
wide range of subjects, including sports,” through the prison library. Docket
206 ¶ 34. They even admit that prisoners have access to versions of Sports
Illustrated that, unlike the swimsuit edition, do not contain nudity. Id. Maday
argues that the SI magazines at issue contain valuable information on
swimsuits. Docket 174 at 15. But after giving proper deference to prison
authority, the court finds there are ample alternative means of expression that
are available to Maday through the prison library.
Under the third Turner factor, “[w]hen accommodation of an asserted
right will have a significant ‘ripple effect’ on fellow inmates or on prison staff,
courts should be particularly deferential to the informed discretion of
corrections officials.” Turner, 482 U.S. at 90. Courts are instructed to
“remember that ‘prison officials may well conclude that certain proposed
interactions, though seemingly innocuous to laymen, have potentially
significant implications for the order and security of a prison.’ ” Murchison, 779
F.3d at 892 (quoting Thornburgh, 490 U.S. at 412).
St. Pierre and Grosshuesch have pointed to numerous adverse effects on
SDDOC facilities that could result from allowing Maday to access the SI
magazines. They suggest that similar such magazines have been known to be
sold, rented, or bartered by inmates in violation of other SDDOC policies.
Docket 207 ¶ 20. They further allege that accommodation of Maday’s asserted
right to view the magazines could increase the risk of assault among inmates
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and against staff. Id. Maday has failed to raise any genuine dispute to these
contentions and has not suggested a way that his right might be
accommodated without infringing on the “liberty and safety [of] everyone else,
guards and other prisoners alike.” Turner, 482 U.S. at 92.
The fourth and final Turner factor provides that “the existence of obvious,
easy alternatives may be evidence that the regulation is not reasonable, but is
an ‘exaggerated response’ to prison concerns . . . .” Id. (citing Block v.
Rutherford, 468 U.S. 576 (1984)). That is, where “an inmate claimant can point
to an alternative that fully accommodates the prisoner’s rights at de minimis
cost to valid penological interests, a court may consider that as evidence that
the regulation does not satisfy the reasonable relationship standard.” Id. at 91.
The Turner decision qualified, however, that “[t]his is not a ‘least restrictive
alternative’ test: prison officials do not have to set up and then shoot down
every conceivable alternative method of accommodating the claimant’s
constitutional complaint.” Id. at 90-91.
Again, Maday has failed to raise any obvious alternatives that would fully
accommodate his asserted constitutional right without compromising the valid
penological interests St. Pierre and Grosshuesch are trying to protect. The
court agrees that it would not be reasonable to expect SDDOC staff to go
through the SI magazines and tear out the numerous images that might
negatively impact the prison environment. See Docket 207 ¶ 28.
Maday has argued that the SI magazines do not feature nudity or
sexually explicit material as defined by the 2014 policy, which suggests he
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thinks the policy was vague as it was applied to him. It is true that “[a]
fundamental tenet of due process is that to be sanctioned one must have
received fair notice that one’s allegedly violative conduct was prohibited,” and
“[i]t is beyond cavil that this principle applies within the prison setting.”
Coffman v. Trickey, 884 F.2d 1057, 1060 (8th Cir. 1989); see also Williams v.
Nix, 1 F.3d 712, 716 (8th Cir. 1993). The plain language of the policy provides
that magazines that “feature” at least one pictorial of nudity are prohibited, and
there is no genuine dispute as to whether the SI magazines at issue contained
at least one nude photograph. As this court held previously, both SI magazines
contained numerous images of exposed buttocks and female breasts. So, to the
contrary of Maday’s assertions, images in the SI magazines fall squarely within
the definition of “nudity” as contemplated and prohibited by the 2014 policy.
Nor is a finding that the SI magazines feature a sexually explicit theme
throughout an exaggerated response to prison concerns. Thus, the 2014 policy
was not unconstitutionally vague as applied to Maday’s SI magazines.
CONCLUSION
Maday is not entitled to have his SI magazines returned because
censorship of the SI magazines was reasonably related to a legitimate
penological interest and the 2014 policy was constitutional as applied.
Thus, it is

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ORDERED that St. Pierre and Grosshuesch’s renewed motion for
summary judgment (Docket 204) is granted.
Dated August 20, 2020.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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