(concurring in part, dissenting in part).
As a matter of settled law, Cody is not entitled to a trial. Honorable Robert Heege, Circuit Judge, properly entered a summary judgment at the trial court level.
I concur to the extent that the documents marked Exhibits 1-24 are to be returned to the Warden. I dissent to granting Cody a trial on the issue of damages concerning Exhibits 25-40. I would affirm Judge Heege’s decision in its entirety.
Cody is a convicted murderer. Stemming from his conviction, Cody has now plagued the courts and been a burden upon the South Dakota taxpayers for well over a decade. He now seeks to sue the State of South Dakota because, as a trustee, returned to the confines of the Penitentiary walls, he claims he has been damaged due to the deprivation of seized personal property. This seized (or confiscated) property consists, inter alia, of a pornographic photograph of his wife, C.D., which he apparently distributed for profit, outside of the Penitentiary walls, but which he took of his wife while he was on trustee status. Cody, while on trustee status, unbeknownst to the Penitentiary officials, operated a commercial enterprise. This consisted of distributing sexual fantasy tapes for profit to those engaged in distributing same, Cody using a pseudonym to cover up his activities. Cody’s trustee status was revoked upon the basis that he abused his mail privileges by establishing a commercial enterprise by producing tape recordings in the areas of pain management, chemotherapy, anorexia/bulimia, alcohol/drug abuse and speech anxiety. In effect, Cody set up a business for profit while he was serving a life sentence for murder.
It is axiomatic that our state prison officials, more particularly the Warden who delegates authority, has a responsibility to preserve order and discipline in the State Penitentiary. Cody, unbelievably, maintains that by engaging in these nefarious acts, he was deeply involving himself in a self-help rehabilitation program. Under SDCL 24-2-1 and 6, the Warden had the right to confiscate the above-described materials. These materials are not authorized by law for any convict to have in his possession. On this point of law, based upon public policy and the safety of the citizens of this state, Cody is not entitled to a trial. Running a prison does not include any inmate setting up a shop to sell or distribute for profit sexually explicit materials, or for that matter, establishing any kind of business. It only makes common sense that prison officials can reasonably limit a prisoner’s activities when it is necessary to maintain discipline, security, and order within the penal institution. Cody's right to possess personal property is, simply put, limited by reason of his confinement. McCrae v. Hankins, 720 F.2d 863 (5th Cir.1983). In Johnson v. Galli, 596 F.Supp. 135, 139 (D.Nevada 1984), the district court cited McCrae approvingly, stating: “Jail officials’ need to maintain security and order allows reasonable restrictions on the property rights of those who are confined there.” The District Court also cited a 5th Circuit case holding this same proposition, Sullivan v. Ford, 609 F.2d 197, 198 (5th Cir.1980). As Cody had no right whatsoever to the personal property in question, he has no right to sue for damages. South Dakota has no liability to Cody.
The weakness of Cody’s lawsuit is only matched by his audacity in bringing it, once again consuming valuable judicial resources.