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Certiorari – Inmate Complaint – Limitation on Discovery

State ex rel. David C. Myers v. Smith, 2009 WI App 49

Pro se

Issue/Holding: Inmate may not utilize discovery to bypass security-based restrictions on access to banned material such as pornography:

¶16      Inmates must not be allowed to evade security restrictions by simply filing suit or petitioning for writ of certiorari and obtaining prohibited materials through discovery. Due process does not mean that a prisoner has an absolute right to everything relevant to his or her case. See Bell v. Wolfish, 441 U.S. 520, 545-46 (1979) (lawful incarceration necessitates the withdrawal or limitation of many rights). “There must be a ‘mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application.’” Id. at 546 (citation omitted). Materials banned to further legitimate penological interests are properly withheld. See Aiello v. Litscher, 104 F. Supp. 2d 1068, 1075 (W.D. Wis. 2000). Myers’ right to due process was satisfied when an independent entity, here the circuit court, reviewed whether the DOC decision to deny him access to the book was arbitrary and capricious. Cf. George v. Smith, 467 F. Supp. 2d 906, 921 (W.D. Wis. 2006) (where in camera inspection by court confirmed DOC decision was neither arbitrary nor irrational when it banned material as prohibited gang-related publication).

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