Johnny Lacy, Jr. v. Peter Huibregtse
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COURT OF APPEALS
DECISION
DATED AND FILED
NOTICE
This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
May 20, 2010
A party may file with the Supreme Court a
petition to review an adverse decision by the
Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
David R. Schanker
Clerk of Court of Appeals
Appeal No.
Cir. Ct. No. 2007SC7428
2008AP1870
STATE OF WISCONSIN
IN COURT OF APPEALS
DISTRICT IV
JOHNNY LACY, JR.,
PLAINTIFF-APPELLANT,
V.
PETER HUIBREGTSE, KELLY TRUMM AND STEVEN B. CASPERSON,
DEFENDANTS-RESPONDENTS.
APPEAL from a judgment of the circuit court for Dane County:
DIANE M. NICKS, Judge.
Affirmed in part; reversed in part and cause
remanded with directions.
¶1
HIGGINBOTHAM, J.1 Johnny Lacy, Jr., an inmate at the
Wisconsin Secure Program Facility (WSPF) in Boscobel, appeals the summary
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(a) (2007-08).
No. 2008AP1870
judgment dismissal on sovereign immunity grounds of his 42 U.S.C. § 1983 small
claims action against Peter Huibregtse, Kelly Trumm and Steven Casperson of the
Wisconsin Department of Corrections (DOC). Lacy alleges that these officials
infringed upon his First Amendment rights by adopting policies that deny inmates
access to commercially produced photographs and that limit the number of
photographs inmates may possess, and by not delivering to him certain risqué
photographs that Lacy maintains are not pornography as the term is defined by the
DOC policy prohibiting pornography in correctional institutions.
¶2
We conclude that Huibregtse, Trumm and Casperson are protected
by qualified immunity from Lacy’s claims for damages. With respect to Lacy’s
claim arising from the non-delivery of the risqué photographs, we conclude that
four photographs were improperly withheld under the pornography ban’s
definitions of nudity and pornography, and direct DOC to deliver these
photographs to Lacy. Accordingly, we affirm in part, reverse in part, and remand
with directions.
BACKGROUND
¶3
The facts of this case are undisputed. At all relevant times, Lacy
was an inmate at the WSPF. Beginning November 2002, the Division of Adult
Institutions (DAI) inmate property policy limited inmates to possession of fifty
photographs. See DAI Policy #309.20.01, Section XIII.C-10.2 Peter Huibregtse,
Deputy Warden at WSPF at the time of these events, sent a memorandum to all
affected inmates informing them of the policy.
2
DAI Policy # 309.20.01, Section XIII C-10 (October 2006) provides, in relevant part,
that “[p]ersonal photographs are restricted to a combined limit of fifty (50).”
2
No. 2008AP1870
¶4
On September 9, 2005, WSPF personnel refused to deliver five
photographs Lacy purchased from a mail order vendor. On April 26, 2006, WSPF
personnel refused to deliver an additional ten photographs and one brochure Lacy
received by mail from the vendor. On both occasions, WSPF personnel explained
they refused to deliver the items because they were prohibited under DOC’s
pornography ban set forth in WIS. ADMIN. CODE § DOC 309.04(4).3
Lacy
appealed both non-delivery decisions, alleging the photographs and brochures did
not contain nudity.
Huibregtse reviewed and denied Lacy’s appeals.
Lacy
subsequently filed inmate complaints. Trumm, an inmate complaint examiner,
reviewed the complaint related to the September 9 non-delivery, and another
inmate complaint examiner reviewed the complaint related to the April 26 nondelivery. Both examiners recommended dismissal of the complaints. Huibregtse
agreed and dismissed both complaints.
The dismissals were affirmed by the
corrections complaint examiner and the Secretary of the DOC.
¶5
In September 2006, the DAI implemented inmate property Policy
#309.20.01, Section XIII.C-11, prohibiting possession of commercially produced
photographs.4 The policy contains a grandfather provision which allows inmates
to keep commercial photographs already in their possession on the date the policy
took effect. In July 2006, Casperson, Administrator of DAI at that time, sent a
memorandum to all affected inmates informing them of the policy.
3
WIS. ADMIN. CODE § DOC 309.04(4)(c)8.a. provides, in relevant part, that “[t]he
department may not deliver incoming or outgoing mail if it … [i]s ‘injurious,’ meaning material
that: [i]s pornography.”
4
DAI Policy # 309.20.01, Section XIII C-11 (October 2006) provides, in relevant part,
that “[c]ommercially published photos are not allowed.”
3
No. 2008AP1870
¶6
In January 2007, Lacy filed an inmate complaint alleging the DAI
policy banning all commercially produced photographs violated his rights under
the United States and Wisconsin Constitutions.
Trumm reviewed Lacy’s
complaint and recommended dismissal. Huibregtse dismissed Lacy’s complaint,5
and the corrections complaint examiner and the Secretary of the DOC affirmed the
dismissal.
¶7
Lacy subsequently filed a civil rights action under 42 U.S.C. § 1983
in small claims court. He alleged that the DAI policies banning inmates from
possessing commercially produced photographs and limiting the number of
personal photographs possessed by an inmate to fifty, and the non-delivery of
certain risqué photographs violated his civil rights6 and his rights under the First
Amendment of the United States Constitution.7 Respondents claimed immunity
5
Lacy’s inmate complaint regarding the ban on commercial photographs and the limit on
the number of photographs an inmate may possess is not in the record. Eileen Pray, an inmate
complaint examiner, averred in an affidavit included in the record that the complaint was filed.
The State cites to this affidavit in support of its factual assertion that the complaint was
administratively processed and dismissed. This affidavit does not support these assertions and we
find no documents in the record reflecting these assertions. However, the State acknowledges in
its brief that this complaint was filed and that the administrative actions were taken. The State
does not argue that Lacy failed to exhaust his administrative remedies and does not argue
forfeiture. For these reasons, and because we resolve the issues related to DAI Policy #309.20.01
on qualified immunity grounds, we address Lacy’s complaint on these two issues.
6
42 U.S.C. § 1983 provides, in relevant part:
[e]very person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in equity, or other
proper proceeding for redress ....
7
UNITED STATES CONST. amend. I provides that “Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the
(continued)
4
No. 2008AP1870
and moved for summary judgment. Lacy moved for summary judgment on his
constitutional claims. The circuit court granted respondents’ motion, ruling that
Trumm and Huibregtse had absolute immunity, and Casperson had qualified
immunity, and entered judgment in their favor. Lacy appeals.
STANDARD OF REVIEW
Summary Judgment
¶8
We review a grant of summary judgment de novo, applying the same
methodology as the circuit court. State v. Bobby G., 2007 WI 77, ¶36, 301
Wis. 2d 531, 734 N.W.2d 81.
Summary judgment is appropriate when the
affidavits and other submissions show that no genuine issue of material fact exists
and the moving party is entitled to judgment as a matter of law. WIS. STAT.
§ 802.08(2). “[W]e draw all reasonable inferences from the evidence in the light
most favorable to the non-moving party.”
Burbank Grease Servs., LLC v.
Sokolowski, 2006 WI 103, ¶40, 294 Wis. 2d 274, 717 N.W.2d 781.
DISCUSSION
Absolute Immunity
¶9
In Wisconsin, we recognize two types of sovereign immunity,
absolute and qualified. Absolute immunity arises out of judicial and quasi-judicial
proceedings. See DiMiceli v. Klieger, 58 Wis. 2d 359, 365, 206 N.W.2d 184
freedom of speech, or of the press; or the right of the people peaceably to assemble, and to
petition the government for a redress of grievances.”
5
No. 2008AP1870
(1973). To determine whether absolute immunity is available to a government
official, we look to an official’s function:
the touchstone for [finding absolute immunity] has been
[the] performance of the function of resolving disputes
between parties, or of authoritatively adjudicating private
rights. When [absolute] immunity is extended to officials
other than judges, it is because their judgments are
functionally comparable to those of judges—that is,
because they, too, exercise a discretionary judgment as a
part of their function.
Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 435-36 (1993) (citations
omitted). The official claiming absolute immunity bears the burden of
demonstrating how public policy requires protection beyond that of qualified
immunity. Harlow v. Fitzgerald, 457 U.S. 800, 808 (1982); Butz v. Economou,
438 U.S. 478, 506-07 (1978).
¶10
Trumm and Huibregtse argue that the circuit court properly
determined that they are entitled to absolute immunity, maintaining that their
duties in examining and dismissing two of Lacy’s three complaints (Trumm) and
in affirming the dismissal of the complaints (Huibregtse) were judicial in nature.
For the reasons set forth below, we conclude that Trumm and Huibregtse are not
entitled to absolute immunity.
¶11
In deciding that Trumm and Huibregtse are entitled to absolute
immunity, the circuit court relied on Koutnick v. Brown, 351 F. Supp. 2d 871
(W.D. Wis. 2004), which held that an inmate complaint examiner and Huibregtse
(a party in that case), were entitled to absolute immunity. However, following
Koutnick, the United States District Court for the Western District of Wisconsin
issued Lindell v. O’Donnell, 2005 WL 2740999 at 15 (W.D. Wis. 2005), which
concluded that DOC inmate complaint examiners (Trumm among them in Lindell)
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No. 2008AP1870
were not entitled to absolute immunity because they “serve as both fact-gatherers
and fact-finders” and make decisions “without the benefit of an adversarial
process and within an environment that is not impartial or insulated from
workplace pressures.”8 The federal district court in Lindell likened DOC inmate
complaint examiners to prison officials serving on an inmate disciplinary review
board whose claims of absolute immunity were rejected by the Supreme Court in
Cleavinger v. Saxner, 474 U.S. 193, 201-02 (1985). There, the High Court
concluded that, as employees of the prison system, the members of the disciplinary
review board lacked the independence of a state or federal judge, and were
therefore not entitled to absolute immunity. Cleavinger, 474 U.S. at 203-04. The
Cleavinger court noted that the board members were direct subordinates of the
prison warden who reviewed their decisions, and co-workers of the prison
employee against whom the inmate complaint was filed. Id. at 204. “It is the old
situational problem of the relationship between the keeper and the kept,” explained
the court, “a relationship that hardly is conducive to a truly adjudicatory
performance.” Id.
¶12
Like the federal district court in Lindell, we are persuaded that,
while inmate complaint examiners and the prison officials who review the
examiners’ decisions act in some sense like judges, they are not entitled to
absolute immunity because they lack the independence from the parties that is
8
Koutnick v. Brown, 351 F. Supp. 2d 871 (W.D. Wis. 2004), and Lindell v. O’Donnell,
2005 WL 2740999 at 15 (W.D. Wis. 2005), are cases from federal courts sitting in Wisconsin.
Because they are from another jurisdiction, we cite them for their persuasive value only. See
Miezin v. Midwest Express Airlines, Inc., 2005 WI App 120, ¶15 n.5, 284 Wis. 2d 428, 701
N.W.2d 626; State ex rel. Gendrich v. Litscher, 2001 WI App 163, ¶7 n.6, 246 Wis. 2d 814, 632
N.W.2d 878. Additionally, although Lindell is an unpublished decision, WIS. STAT. § 809.23(3)
permits us to cite unpublished opinions from other jurisdictions for their persuasive value.
Predick v. O’Connor, 2003 WI App 46, ¶12 n.7, 260 Wis. 2d 323, 660 N.W.2d 1.
7
No. 2008AP1870
essential to the judicial function. We find persuasive Lindell’s thorough analysis
of this issue, which we have set forth in its entirety below:
The distinctions made by the [Cleavinger] Court
between prison disciplinary hearing officers and judges
apply with even greater force to the differences between
judges and inmate complaint review officers. In Wisconsin,
the inmate complaint review system is administered by
prison officials operating in four distinct roles: (1) “inmate
complaint examiners,” who investigate facts of inmate
complaints and offer preliminary recommendations for
disposition to the reviewing authority; (2) “reviewing
authorities,” who receive the recommendations of
complaint examiners and either recommend further
investigation by the inmate complaint examiner or dispose
of the complaints; (3) “corrections complaint examiners,”
who review decisions of reviewing authorities, conduct
independent investigation of the facts underlying the
complaint and offer recommendations for disposition to the
Secretary; and (4) the “Secretary,” who can order further
investigation by the corrections complaint examiner, accept
recommendations of the corrections complaint examiner
(with or without modification) or reject the
recommendation and issue an independent disposition.
Wis. Admin. Code §§ DOC 310.11(3) & (11), 310.12(2),
310.13(5)-(6), 310.14(2). Like disciplinary hearing officers,
all inmate complaint review officers are employees of the
Wisconsin Department of Corrections. See, e.g., Wis.
Admin. Code § DOC 310.03(2), (5), (10), (15).
Typically, complaint review officers work within
the Department of Corrections as the colleagues and
supervisors of officials often named in suits as “offending
parties.” Although reviewing authorities and the Secretary
are responsible for determining the disposition of
complaints, which is a task traditionally carried out by
judicial officers, all complaint review officials possess the
authority to investigate facts or recommend that those
under their supervision investigate facts relevant to the
resolution of inmate complaints. Wisconsin Admin. Code
§§ DOC 310.11(3) and 310.13(5) authorize inmate
complaint examiners and corrections complaint examiners
to use “discretion in deciding the method best suited to
determine the facts [raised by a complaint], including
personal interviews, telephone calls and document review.”
Reviewing authorities and the Secretary are given the
authority to order “further investigation” of the complaints
that come before them. Wis. Admin. Code §§ DOC
8
No. 2008AP1870
310.12(2)(e), 310.14(2)(d). Therefore, officers within the
inmate complaint review system serve as both factgatherers and fact-finders. They investigate charges of
wrongdoing on the part of their colleagues and recommend
or issue decisions on those charges. Their decisions are
made without the benefit of an adversarial process and
within an environment that is not impartial or insulated
from workplace pressure…. I find that these officials fail
to meet the prevailing standard for absolute immunity as set
forth in Cleavinger.
Lindell, 2005 WL 2740999 at 15.
Qualified Immunity
¶13
In the alternative, Trumm and Huibregtse argue they are entitled to
qualified immunity, and DAI Administrator Casperson joins in this argument.
“The doctrine of qualified immunity protects government officials from liability
for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have
known.” Pearson v. Callahan, 129 S. Ct. 808, 815 (2009) (citation omitted).
Prior to Pearson, courts applied a rigid two-part test to determine whether a
government official is entitled to qualified immunity. See Saucier v. Katz, 533
U.S. 194, 200-03 (2001). Under that test, courts were required to first decide
whether the facts alleged made out a violation of a constitutional right. Pearson,
129 S. Ct. at 815-16. If this prong is met, the analysis proceeded to whether the
right at issue was “clearly established” at the time of the alleged misconduct. Id.
at 816. Under Pearson, however, courts are no longer required to analyze these
two steps in order when addressing a claim of qualified immunity. Instead, courts
now have the discretion to decide the sequence of the two-prong qualified
immunity analysis “in light of the circumstances” of the case at hand. Pearson,
129 S. Ct. at 818. Moreover, it is no longer necessary to address both prongs if the
9
No. 2008AP1870
party asserting qualified immunity makes a sufficient showing as to one prong.
Id.
¶14
Lacy alleges that DAI Policy #309.20.01, Section XIII.C-11,
prohibiting the possession of commercially produced photographs, and DAI Policy
#309.20.01, Section XIII.C-10, limiting the number of photographs an inmate may
possess to fifty, violate his First Amendment rights. We observe that Lacy has not
designated the nature of his constitutional challenges as facial or as-applied.
Nonetheless, for purposes of this appeal, we construe both of these claims as facial
challenges to the constitutionality of these policies because neither of these
policies were specifically applied against Lacy. It would appear that these claims
target DAI Administrator Casperson, an official of the agency charged with
creating DAI policies. For purposes of determining whether Casperson may assert
qualified immunity against these claims, we consider first whether Lacy’s
purported First Amendment right to possess commercially produced photographs
and to possess more than fifty photographs are “clearly established.”
¶15
With regard to the commercial photography ban, we note that the
United States Court of Appeals for the Seventh Circuit reviewed this DAI policy
and upheld its constitutionality in Jackson v. Frank, 509 F.3d 389, 391-92 (7th
Cir. 2007). Although we are not bound by the Seventh Circuit’s rulings on the
constitutionality of Wisconsin laws, see Kaloti Enterprises, Inc. v. Kellogg Sales
Co., 2005 WI 111, ¶23, 283 Wis. 2d 555, 699 N.W.2d 205, we are persuaded by
the Jackson court’s analysis. Applying the test set forth in Turner v. Safley, 482
U.S. 78, 89-91 (1987), for determining the constitutionality of a First Amendment
restriction on inmates, the Seventh Circuit in Jackson held the commercial
photography ban was permissible because it was reasonably related to legitimate
penological objectives.
Jackson, 509 F.3d at 391-92.
10
The Jackson court
No. 2008AP1870
concluded that the DOC’s interest in conserving staff resources by limiting the
property inmates may possess, and the availability of an alternate means of
acquiring the same material via a magazine subscription (inmates may possess
magazines under DOC rules), weighed in favor of the constitutionality of the
restriction. Id. Adopting Jackson’s analysis as our own, we conclude that Lacy
does not have a clearly established right to possess commercially produced
photographs, and, thus, Casperson is entitled to qualified immunity on this claim.
¶16
Lacy argues this case is distinguishable from Jackson because
Jackson turned on the fact that photographs at issue in that case were of the
actress Jennifer Aniston, a celebrity whose image appears regularly in popular
magazines. See id. at 390. Thus, Jackson would be able to obtain images of
Aniston by subscribing to celebrity magazines, whereas, in Lacy’s view, this
alternate means of First Amendment expression is not available to him because the
less famous models in Lacy’s mail order photographs do not appear in popular
magazines. We are not persuaded.
¶17
We agree with the circuit court that the fact that Lacy will not find
pictures of these particular models in popular magazines does not alter the
conclusion in this case. As the circuit court noted, Lacy, unlike Jackson, seeks
photographs of swimwear-clad women in general, not photographs of any one
swimsuit model in particular.
Thus, subscribing to a popular magazine that
features models in swimwear is a more than adequate alternate means of the First
Amendment activity Lacy seeks to engage in.
¶18
With regard to Lacy’s challenge to the fifty-photograph limit set
forth in DAI Policy #309.20.01, Section XIII.C-10, we note that the
constitutionality of this rule has not previously been addressed by any state or
11
No. 2008AP1870
federal court.
However, Lacy fails to direct our attention to any case law
invalidating a comparable restriction, and therefore does not meet his burden of
showing that this policy violates a “clearly established” constitutional right.
¶19
Moreover, some of the reasons advanced by the respondents for the
fifty-photograph limit are identical to those reasons on which the Jackson court
relied in upholding the commercial photography ban. For example, an affidavit
submitted by Daniel A. Westfield, Security Chief of the DAI, stated that the
photograph limit conserves limited staff resources, allowing security staff to spend
less time processing incoming mail and more time with other essential tasks. As
noted, conservation of staff resources was among the reasons on which the
Jackson court relied in concluding that the commercial photography ban was
reasonably related to a legitimate penological objective. See Jackson, 509 F.3d at
391-92. We therefore conclude that Casperson is entitled to qualified immunity
on this claim as well.
Risqué Photographs Withheld from Lacy
¶20
Lacy contends that prison personnel improperly withheld from him
fifteen photographs they confiscated on September 9, 2005 and April 26, 2006, as
pornographic under the definitions of pornography and nudity as set forth in WIS.
ADMIN. CODE §§ DOC 309.02(16)(b) and (14), respectively.9 Pornography as
9
Lacy also argues that the circuit court erred by dismissing this claim on the ground that
the policy banning inmates from possessing commercially produced photographs applied to these
photos. We agree. This ban was not in effect at the time the photographs were withheld, and the
regulation grandfathers in commercial photographs in the possession of an inmate prior to the
enactment of the ban.
12
No. 2008AP1870
defined in § DOC 309.02(16) includes “a publication that features nudity.”10
Section DOC 309.02(14) defines “nudity for commercially produced material” as:
The showing of human male or female genitals or pubic
area with less than a fully opaque covering, or the showing
of the female breast with less than a fully opaque covering
of the areola or nipple, or the depiction of covered male
genitals in a discernibly turgid state.
“Opaque” is not defined in the regulation. Turning to its definition in a wellaccepted dictionary, “opaque” means “impervious to the rays of visible light: not
10
WISCONSIN ADMIN. CODE § DOC 309.02(16) defines pornography as follows:
(a) Any material, other than written material, that depicts
any of the following:
1. Human sexual behavior.
2. Sadomasochistic abuse, including but not limited to
flagellation, bondage, brutality to or mutilation or physical
torture of a human being.
3. Unnatural preoccupation with human excretion.
4. Nudity which is not part of any published photograph
or printed material, such as a personal nude photograph.
5. Nudity of any person who has not attained the age of
18.
(b) A publication that features nudity.
(c) Written material which the average person, applying
state contemporary community standards, would find, when
taken as a whole does all of the following:
1. Appeals to the prurient interest.
2. Describes human sexual behavior in a patently
offensive way.
3. Lacks serious literary, artistic, political, educational,
or scientific value.
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No. 2008AP1870
transparent
or
translucent.”
WEBSTER’S
THIRD
NEW
INTERNATIONAL
DICTIONARY, 1579 (1993).
¶21
The State contends that Trumm and Huibregtse, the officials who
withheld the photographs from Lacy, are entitled to qualified immunity against
Lacy’s as-applied constitutional claim for damages stemming from the
withholding of risqué mail order photographs under the pornography ban.11 We
agree because Lacy has failed to establish that he had a clearly established
constitutional right to these particular photographs at the time they were withheld.
¶22
As the photograph-by-photograph analysis below indicates, several
of these photographs were properly withheld.
Those photographs that were
improperly withheld come so close to the rule’s definitions of nudity and
pornography—the photographs all feature women in provocative poses wearing
skimpy swimsuits made of thin fabric—that it cannot be said that Lacy had a
“clearly established” right to these photographs at the time they were excluded. In
other words, while we conclude below that four of these photographs do not
contain nudity and are not pornography within the meaning of the rule, a prison
official reviewing these photographs might reasonably come to a different
conclusion.
Thus, we conclude that Trumm and Huibregtse are entitled to
qualified immunity on Lacy’s claim for damages relating to the improper
11
We do not construe Lacy’s complaint to state a facial challenge to the constitutionality
of the pornography ban. He merely asserts that the photographs were wrongfully denied to him
under the DAI policy’s own definitions of nudity and pornography, which are the product of a
successful challenge to the constitutionality of a prior, more stringent, ban on pornographic
materials. We accept for purposes of this analysis only that the present regulation mirrors the
scope of a prison inmate’s First Amendment rights to published materials.
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No. 2008AP1870
withholding of four photographs that we conclude, for the reasons provided below,
were improperly withheld from him.12
¶23
The fact that Trumm and Huibregtse are immune from damages,
however, does not preclude Lacy from seeking the return of any improperly
withheld photos that are not pornography and do not contain nudity within the
meaning of the DAI policy.13 See Baxter v. DNR, 165 Wis. 2d 298, 303 n.5, 477
N.W.2d 648 (1991) (qualified immunity applies only to claims for damages, not to
claims seeking injunctive relief). We therefore examine each of the photographs
contained in the record to determine whether they are pornography within the
meaning of WIS. ADMIN. CODE § DOC 309.02(16) or contain nudity as defined by
§ DOC 309.02(14).
¶24
The record as received on appeal contains eleven photographs, one
of which is a duplicate, and one brochure, which were all withheld from Lacy.
The photographs appear to be prints of digital photographs. We will consider each
item individually by file number, which is printed on the back of all but one of the
photographs.
12
In the alternative, the State contends that Lacy was not entitled to the photographs and
brochure because they are subject to the ban on commercially published photographs. We
disagree. We noted in footnote 8 that DAI Policy #309.20.01, contained a grandfather provision,
permitting inmates to possess commercially published photographs received before September
2006, the effective date of the new policy. The alleged pornographic and nude photographs were
withheld from Lacy in September 2005 and April 2006, before the ban on commercial
photographs was adopted.
13
Although Lacy did not specifically seek injunctive relief in his small claims complaint,
we interpret his complaint liberally to include such a claim, especially since he argues for this
remedy in his briefs on appeal and the State does not argue that Lacy is not entitled to this remedy
should he prevail on this issue.
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No. 2008AP1870
¶25
Photograph 0(4): Picture of a woman sitting on a beach in a light
blue bikini. Her bikini is fully opaque and covers her genitals, pubic area, areolae
and nipples. Therefore, photograph 0(4) was improperly denied to Lacy.
¶26
Photograph 0(94): Picture of a woman sitting on the beach in a light
blue patterned bikini. Her genitalia and breasts are covered with a less than fully
opaque covering and her areolae are not fully covered. Therefore, photograph
0(94) was properly denied to Lacy.
¶27
Photograph 1(1): Picture of a woman sitting on the beach in a white
bikini. Her bikini is fully opaque and covers her genitals, pubic area, areolae and
nipples. Therefore, photograph 1(1) was improperly denied to Lacy.
¶28
Photograph 1(2): Picture of a woman lying on the ground in a
translucent yellow bikini. Her genitalia and breasts are covered with a less than
fully opaque covering. Therefore, this photograph was properly denied to Lacy.
¶29
bikini.
Photograph 1(11): Picture of a woman sitting on the beach in a teal
Her genitalia are covered with a less than fully opaque covering.
Therefore, photograph 1(11) was properly denied to Lacy.
¶30
Photograph 1(13): Picture of a woman standing in front of a wooden
wall in a pink bikini. Her bikini is fully opaque and covers her genitals, pubic
area, areolae and nipples. Therefore, this photograph was improperly denied to
Lacy.
¶31
Unnumbered Photograph: Duplicate of Photograph 1(13). For the
same reasons as photograph 1(13), this photo was improperly denied to Lacy.
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No. 2008AP1870
¶32
Photograph 1(24): Picture of a woman sitting on a beach in a teal
colored bikini. Her genitalia are covered with a less than fully opaque covering.
Therefore, photograph 1(24) was properly denied to Lacy.
¶33
Photograph 30(3): Picture of a woman in a red bikini lying on a bed
with her legs spread.
Her pubic area is not fully covered.
Therefore, this
photograph was properly denied to Lacy.
¶34
Photograph 30(51): Similar to photograph 30(3) but the woman is in
a slightly different position. Her pubic area is not fully covered. Therefore,
photograph 30(51) was properly denied to Lacy.
¶35
Photograph 30(67): Picture of a woman sitting in a chair with a
white striped bikini. Her genitalia are covered with a less than fully opaque
covering. Therefore, photograph 30(67) was properly denied to Lacy.
¶36
Brochure: Printed eight and a half by eleven sheet of non-glossy
paper with five rows and eight columns of thumbnail-sized pictures of women in
bikinis. The women in Row 1, Column 8; Row 2, Column 7; Row 4, Column1;
and Row 5, Column 7 are wearing translucent bikinis over their genitals.
Therefore, the brochure was properly denied to Lacy.
¶37
Because we conclude that Lacy was improperly denied delivery of
four photographs, Lacy has shown a violation of his First Amendment rights. He
is therefore entitled to the delivery of these photographs.
¶38
In sum, we grant Lacy’s motion for summary judgment with respect
to the four photographs we conclude he was entitled to receive and remand to the
circuit court with directions to order the DOC to deliver these photos to Lacy.
17
No. 2008AP1870
However, we conclude that all three respondents are entitled to qualified immunity
from damages on all claims.
By the Court.—Judgment affirmed in part; reversed in part and cause
remanded with directions.
This opinion will not be published.
809.23(1)(b)4.
18
See WIS. STAT. RULE
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