               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.

                                           -2-
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.

                                           -3-
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.

                                          -4-
       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 facial-
challenge 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

                                          -5-
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.

                                       -6-
      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

                                          -7-
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”).

                                          -8-
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


                                          -9-
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 as-


       5
        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”).

                                           -10-
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 as-
applied 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.

                                          -11-
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.
                       ______________________________




                                         -12-
