United States Court of Appeals

For the Eighth Circuit

___________________________

No. 16-4313

___________________________

Charles E. Sisney

lllllllllllllllllllll Plaintiff - Appellee

v.

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; Craig Mousel, in his official capacity as an SDSP

designated Property Officer

lllllllllllllllllllll Defendants - Appellants

------------------------------

American Civil Liberties Union of South Dakota

lllllllllllllllllllllAmicus Curiae

National Coalition Against Censorship

lllllllllllllllllllllAmicus on Behalf of Appellee(s)

___________________________

No. 16-4480

___________________________

Charles E. Sisney

lllllllllllllllllllll Plaintiff - Appellant

v.
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; Craig Mousel, in his official capacity as an SDSP

designated Property Officer

lllllllllllllllllllll Defendants - Appellees

____________

Appeals from United States District Court 

for the District of South Dakota - Sioux Falls

____________

 Submitted: October 19, 2017

 Filed: March 30, 2018

____________

Before GRUENDER and BENTON, Circuit Judges, and TUNHEIM,1

 District

Judge.

____________

GRUENDER, Circuit Judge.

Inmate Charles Sisney brought this pro se civil rights action against four South

Dakota corrections officials, asserting both facial and as-applied challenges to the

State’s prison-pornography policy. The district court construed Sisney’s facial

challenges to two distinct provisions of the policy as a single attack on the entire

policy, and it granted his motion for summary judgment on this score. After

invalidating the policy on its face, the court proceeded to resurrect a prior version of

the policy and used it to resolve all but one of the as-applied challenges in Sisney’s

favor. The prison officials now appeal the partial grant of summary judgment to

Sisney, and Sisney cross appeals. For several reasons, we find it prudent to decide

1

The Honorable John R. Tunheim, Chief Judge, United States District Court for

the District of Minnesota, sitting by designation.

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whether the policy was constitutional as applied to Sisney before reaching his facial

challenges. However, the district court erred in its as-applied analysis, so we vacate

the summary judgment order and remand for it to consider, in the first instance,

Sisney’s as-applied claims based on the version of the policy he actually challenged

and then to determine whether facial relief remains necessary. 

I.

Sisney has been serving a life sentence at the South Dakota State Penitentiary

(“SDSP”) since 1997. During this time, he has brought several civil rights actions,

including two pro se suits in South Dakota state court and a free-exercise challenge

that was part of a consolidated appeal before this court. See Sisney v. State, 754

N.W.2d 639 (S.D. 2008); Sisney v. Best Inc., 754 N.W.2d 804 (S.D. 2008); Van Whye

v. Reisch, 581 F.3d 639 (8th Cir. 2009). With the benefit of this experience, Sisney

now raises a variety of challenges to the 2014 version of the South Dakota Department

of Correction (“SDDOC”) pornography policy (“2014 Policy”).2

In relevant part, the 2014 Policy “prohibits the purchase, possession and

attempted possession and manufacturing of pornographic materials by offenders

housed in [SDDOC] institutions.” SDDOC, Policy No. 1.3.C.8, Pornography (2014). 

The term “pornographic material” is defined to include “books, articles, pamphlets,

magazines, periodicals, or any other publications or materials that feature nudity or

‘sexually-explicit’ conduct . . . [as well as] photographs, drawings, etchings, paintings,

or other graphic depictions of nudity or sexually explicit material.” Id. “Nudity,” in

turn, is defined as “a pictorial or other graphic depiction where male or female

genitalia, pubic area, buttocks or female breasts are exposed,” while “sexually

explicit” covers both images and writings that depict actual or simulated sexual acts. 

Id. Any material that qualifies as pornography under these definitions—including

2

Sisney acted pro se throughout the proceedings before the district court, but

counsel was appointed to represent him on appeal. 

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both incoming and outgoing correspondence—is treated as contraband and may be

confiscated by prison staff. Id. Moreover, prisoners found in possession of

pornography are subject to disciplinary action. Id. Inmates who disagree with a given

classification, however, are entitled to appeal the decision through an administrative

process. Id. 

Acting pursuant to the 2014 Policy, SDSP staff rejected a number of items that

were mailed to Sisney. The prohibited materials included two erotic novels, Thrones

of Desire and Pride and Prejudice: The Wild and Wanton Edition, as well as four

Japanese manga comics from a series called Pretty Face, nine images of Renaissance

artworks depicting nudity, a book on Matisse and Picasso, and a poster featuring the

iconic Coppertone suntan-girl advertisement. Sisney went through the prison

grievance process to challenge the rejection of each of these items, but he was denied

relief with only brief explanations as to why the materials were withheld. 

In April 2015, having exhausted his administrative remedies, Sisney filed a pro

se complaint pursuant to 42 U.S.C. § 1983. His subsequent amended complaint

included six claims: (1) a facial challenge to the policy “as it completely bans all

sexually explicit material, both pictorial and written”; (2) a facial challenge to the

policy “as it bans not only [Sisney] to receive sexually explicit communications, but

also prohibits [him] from sending out sexually explicit communications to those in the

general public”; (3) a due process claim not raised on appeal; (4) an as-applied

challenge concerning the SDSP’s “overly broad and exaggerated interpretations of

pornography, nudity and sexually explicit material”; (5) an as-applied challenge to the

rejection of the three books and four Pretty Face comics; and (6) an as-applied

challenge to the rejection of the nine Renaissance images and the Coppertone poster. 

In his prayer for relief, Sisney requested declaratory relief as to the constitutionality

of the ban on all “sexually explicit” material and the outgoing-mail regulation,

declaratory relief concerning his as-applied challenges, injunctive relief requiring the

SDDOC to prohibit only “traditional forms of pornography and obscene materials,”

and injunctive relief ordering the prison to allow him to receive the rejected items. 

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Following a limited period of discovery, the corrections officials moved for

summary judgment as to all claims. Beyond contesting Sisney’s asserted

“constitutional right to receive sexually explicit communications,” the officials cited

a variety of district and circuit court opinions describing the general penological

interests served by prison bans on sexually explicit materials, including institutional

security, rehabilitation, and the prevention of sex crimes in prison, as well as a

reduction in sexual harassment directed at staff. They then emphasized that the

district court had found these same interests sufficient to uphold the 2000 version of

the SDDOC pornography policy (“2000 Policy”) in King v. Dooley, CIV. 00-4052

(D.S.D. June 16, 2003), suggesting that this decision was dispositive as to Sisney’s

“facial challenge” because the 2014 Policy is “essentially the same.” The officials

provided no explanation, however, for modifying the policy and never suggested that

the general penological interests from the cases they cited actually motivated the

adoption of the 2014 Policy. Shortly thereafter, Sisney countered with his own

motion for summary judgment. In it, he noted that the SDDOC policy had undergone

significant revision since it was upheld in King. For example, the 2014 Policy banned

written sexually explicit materials, expanded the definition of nudity, and extended

the policy to outgoing correspondence. Sisney argued that these and other changes

rendered the 2014 Policy unconstitutionally overbroad, even considering the

legitimate interests promoted by other prison pornography-censorship policies.

The district court referred the cross motions for summary judgment to a

magistrate judge, who issued a thorough report and recommendation (“R&R”) that

found largely in favor of Sisney. First, the magistrate judge concluded that the 2014

Policy “is much more sweeping and comprehensive than its predecessor which was

analyzed in King.” Accordingly, the R&R rejected the defendants’ claim that King

was dispositive as to Sisney’s “facial challenge”3

 to the 2014 Policy. The magistrate

3

Apparently, the fact that the corrections officials construed Sisney’s two facialchallenge counts as a single attack on the entire policy rather than more limited

challenges to individual provisions led the magistrate judge, and ultimately the district

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judge next considered the merits of the facial claims, evaluating the regulations on

incoming mail under the Supreme Court’s four-factor balancing test from Turner v.

Safley, 482 U.S. 78 (1987), and the regulations on outgoing mail under the stricter test

from Procunier v. Martinez, 416 U.S. 396 (1974). Based on these separate analyses,

the R&R concluded that “the current [2014] policy must be declared facially invalid”

in its entirety because the SDDOC provided no justification for the policy beyond

emphasizing its similarity to the 2000 Policy upheld in King. Rather than concluding

there, however, the magistrate judge proceeded to the as-applied challenges, offering

no explanation for doing so beyond an unsupported assertion that the “DOC policy

may be enforced insofar as it comports with the policy approved of in King.” Thus,

applying the superseded 2000 Policy, the magistrate judge recommended granting the

defendants’ motion for summary judgment as to the Pretty Face comics and the

Coppertone poster, while granting Sisney’s motion for summary judgment as to all of

the other rejected materials. 

Given the breadth of objections to the R&R, the district court reviewed the

entire report de novo, ultimately adopting the recommendations and findings in nearly

all respects. The court first observed that “[t]he basic claim of the Defendants is that

the current policy really is no different than the [2000] policy . . . approved in King,”

and it agreed with the magistrate judge’s rejection of this argument based on the

“significant” differences between the two policies. The district court then held that

the “new and overly broad policy goes far beyond what is necessary and is

unconstitutional.” With respect to the as-applied challenges, the court voiced concern

about the R&R’s unique approach of resurrecting and applying the 2000 Policy but

seemingly accepted it nonetheless:

[The R&R’s] discussion of what is or is not censored under King is dicta

and is only used to demonstrate some of the differences between the

policies approved in King and the policies now before the Court. The

R&R does not treat the King discussion as dicta. This Court does

court, to adopt the same approach. 

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consider the King discussions to be dicta because this Court does not

believe that what there is of King policy in the present policy can be

abstracted from the present policy to then apply those abstractions to the

as-applied challenges. Nonetheless, this Court has applied the as-applied

challenges under the King policy.

As we understand it, the district court applied the 2000 Policy despite its misgivings

and found for Sisney as to each of the rejected materials except the Pretty Face

comics. The prison officials then appealed the adverse grant of summary judgment,

and Sisney cross-appealed the denial of relief as to the four comic books. 

II.

“We review a district court’s grant of summary judgment de novo, viewing the

evidence in the light most favorable to the non-moving party and giving the

non-moving party the benefit of all reasonable inferences.” Murchison v. Rogers, 779

F.3d 882, 886-87 (8th Cir. 2015). Summary judgment is proper if there is no genuine

dispute of material fact and the movant is entitled to judgment as a matter of law. Fed.

R. Civ. P. 56(a). While a prisoner bringing a pro se action “is entitled to the benefit

of a liberal construction of his pleadings . . . [Rule] 56 remains applicable.” See Quam

v. Minnehaha Cty. Jail, 821 F.2d 522, 522 (8th Cir. 1987) (per curiam).

As the Supreme Court instructed in Turner, prisoners’ rights cases require

courts to strike a balance between two competing principles. 482 U.S. at 84-85. “The

first of these principles is that . . . [p]rison walls do not form a barrier separating

prison inmates from the protections of the Constitution,” id. at 84, “including those

of the First Amendment,” Beard v. Banks, 548 U.S. 521, 528 (2006). At the same

time, Turner acknowledged that “courts are ill equipped to deal with the increasingly

urgent problems of prison administration and reform.” 482 U.S. at 84. From a

functional perspective, the Court noted, “[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

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government.” Id. at 84-85. Thus, “separation of powers concerns counsel a policy of

judicial restraint” when it comes to reviewing prison regulations. Id. at 85. Moreover,

“[w]here a state penal system is involved,” as it is here and was in Turner, federalism

serves as an “additional reason to accord deference to the appropriate prison

authorities.” See id. In light of these dueling interests, the Court held that “a lesser

standard of scrutiny is appropriate in determining the constitutionality of the prison

rules.” Id. at 81. Namely, “when a prison regulation impinges on inmates’

constitutional rights, the regulation is valid if it is reasonably related to legitimate

penological interests.”4

 Id. at 89. 

Like other parties, inmates are permitted to raise both as-applied and facial

challenges. See, e.g., Thornburgh, 490 U.S. at 403. In the First Amendment context,

we recognize a unique species of facial challenge, “under which a law may be

overturned as impermissibly overbroad because a substantial number of its

applications are unconstitutional, judged in relation to the statute’s plainly legitimate

sweep.” See Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449

n.6 (2008) (internal quotation marks omitted). Sisney’s two facial claims both fall

into the category of overbreadth challenges.

“It is not the usual judicial practice, however, nor do we consider it generally

desirable, to proceed to an overbreadth issue unnecessarily—that is, before it is

4

As the R&R correctly recognized, the same degree of deference does not

extend to prison restrictions on outgoing mail, which are subject to review under the

more exacting standard set out in Martinez. See Turner, 482 U.S. at 85, 87

(distinguishing between restrictions on incoming and outgoing mail and explaining

that Martinez’s application of heightened scrutiny “turned on the fact that the

challenged regulation caused a consequential restriction on the First and Fourteenth

Amendment rights of those who are not prisoners.” (internal quotation marks

omitted)); see also Thornburgh v. Abbott, 490 U.S. 401, 413 (1989) (providing an

independent justification for this distinction because “[t]he implications of outgoing

correspondence for prison security are of a categorically lesser magnitude than the

implications of incoming materials”).

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determined that the statute would be valid as applied.” Bd. of Tr. of State Univ. of

N.Y. v. Fox, 492 U.S. 469, 484-85 (1989); see also Wash. State Grange, 552 U.S. at

450 (explaining that, even outside the First Amendment context, “[f]acial challenges

are disfavored”). As the Supreme Court explained in Board of Trustees v. Fox, 

[s]uch a course would convert use of the overbreadth doctrine from a

necessary means of vindicating the plaintiff’s own right not to be bound

by a statute that is unconstitutional into a means of mounting gratuitous

wholesale attacks upon state and federal laws. Moreover, the

overbreadth question is ordinarily more difficult to resolve than the

as-applied, since it requires determination whether the statute’s

overreach is substantial, not only as an absolute matter, but “judged in

relation to the statute’s plainly legitimate sweep,” and therefore requires

consideration of many more applications than those immediately before

the court. Thus, for reasons relating both to the proper functioning of

courts and to their efficiency, the lawfulness of the particular application

of the law should ordinarily be decided first.

492 U.S. at 485 (citation omitted). Indeed, the Supreme Court has long recognized

that the resort to overbreadth doctrine “is, manifestly, strong medicine,” and as

such,“[i]t has been employed . . . sparingly and only as a last resort.” Broaderick v.

Oklahoma, 413 U.S. 601, 613 (1973). 

Although Fox and its progeny do not require courts to resolve as-applied

challenges before reaching claims of facial unconstitutionality, we conclude that

several aspects of this case militate in favor of “resist[ing] the pulls to decide the

constitutional issues . . . on a broader basis than the record before us imperatively

requires.” See Street v. New York, 394 U.S. 576, 581 (1969). First, the Fox approach

appropriately reflects the deference we owe to corrections officials in prisoners’ rights

cases. As noted above, the need for restraint is only amplified here, given that both

federalism and separation-of-powers concerns are implicated. See Turner, 482 U.S.

at 84-85. Second and relatedly, beginning with Sisney’s as-applied challenges could

allow for the fashioning of more limited relief. For starters, if Sisney were entitled to

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as-applied relief, his claims might be redressed without reaching the overbreadth

issue. See Jacobsen v. Howard, 109 F.3d 1268, 1274-75 (8th Cir. 1997) (admonishing

that “the district court should have first considered the validity of the statutes as

applied” because then it “would have found it unnecessary to consider the overbreadth

issue”). Moreover, even if the as-applied analysis did not fully resolve the case, the

Fox approach might facilitate the severing of constitutionally suspect provisions

instead of invalidating the entire policy.5

 See Fallon, 99 Cal. L. Rev. at 955 (“[I]f the

Court determines that a statute would otherwise be substantially overbroad under the

First Amendment overbreadth test, it will normally sever the statute and hold it only

partially invalid if . . . it can identify a particular, precise way of severing the statute

that cures the defect of substantial overbreadth.”). Third, as the Supreme Court has

cautioned, “[c]laims of facial invalidity often rest on speculation. As a consequence,

they raise the risk of premature interpretation of statutes on the basis of factually

barebones records.” Wash. State Grange, 552 U.S. at 450 (internal quotation marks

omitted). Here, Sisney challenges the outgoing-mail provision on its face, but he does

not allege that any of his own correspondence was censored under the regulation. 

Given the speculative nature of his challenge to this provision, we are reluctant to rush

into a broad constitutional ruling without a better understanding of how the regulation

is actually applied, especially if as-applied relief or a different construction of

Sisney’s complaint would render such a ruling unnecessary.

In Jacobsen v. Howard, another overbreadth appeal involving the grant of both

as-applied and facial relief, we similarly resolved to begin our analysis with the as5

That is, of course, assuming Sisney challenged the entire policy. As mentioned

above, it is unclear to us that Sisney’s amended complaint raised a facial challenge to

the entire policy rather than separate facial challenges targeting the outgoing-mail

provision and the definition of “sexually explicit.” See Richard H. Fallon, Jr., Fact

and Fiction about Facial Challenges, 99 Cal. L. Rev. 915, 925 (2011) (noting that

“the Supreme Court routinely speaks of facial attacks on particular provisions . . . even

when the success of those attacks could leave other aspects of multipart enactments

[or rules] intact”). 

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applied challenges. See 109 F.3d at 1271. Because we held that the challenged

statutes in Jacobsen were unconstitutional as applied, we went on to vacate the

separate finding of facial unconstitutionality as unnecessary and unwarranted. Id. at

1274-75. We have taken this approach in other cases, as well. See, e.g., Harmon v.

City of Kansas City, 197 F.3d 321, 328 (8th Cir. 1999). 

Here, however, we cannot adopt the district court’s as-applied analysis because

it was error to resurrect and apply the 2000 Policy. This was not the policy that

Sisney actually challenged, nor was it the authority under which SDSP staff withheld

the rejected materials. In fact, once the district court facially invalidated the 2014

Policy, there was nothing left to apply, given that new SDDOC policies supercede

rather than amend previous provisions in their entirety.6

 See, e.g., SDDOC, Policy

No. 1.3.C.8. Moreover, even if we could take this approach, it would be imprudent

to do so. As the district court itself correctly concluded, “the differences [between the

two policies] are significant,” and further, the hypothetical application of the 2000

Policy is highly speculative in that it requires guessing what the prison would or

would not have censured under the old policy. 

In light of this error, we believe the best course is to vacate the summary

judgment order in its entirety and allow the district court to reevaluate Sisney’s asapplied claims based on the 2014 Policy—the version he actually challenged. See,

e.g., Montin v. Estate of Johnson, 636 F.3d 409, 416 (8th Cir. 2011) (“Out of

prudence, we believe it is appropriate to allow the district court to address this issue

in the first instance,” particularly when a pro se plaintiff’s filings before the district

court “lacked clarity”); see also Thornburgh, 490 U.S. at 403-04, 419 (upholding a

6

Although the district court suggested that it considered the R&R’s “discussion

of what is or is not censored under King [to be] dicta,” it nonetheless evaluated

Sisney’s as-applied challenges under the superceded 2000 Policy. Even if there were

some principled distinction between what the court said and did, however, we believe

that conducting the as-applied analysis based on the 2014 Policy is a necessary first

step in resolving this case.

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challenged prison censorship scheme on its face and endorsing the appellate court’s

decision to remand for the district court to evaluate the as-applied challenges in the

first instance). Only after this determination will the district court be able to decide

whether and to what extent it is appropriate to consider Sisney’s facial challenges,

resolve the other issues identified above, and fashion appropriate relief. 

III.

Accordingly, we vacate the district court’s summary judgment order and

remand for further proceedings consistent with this opinion. 

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