United States District Court, D. South Dakota, Southern Division
ORDER GRANTING SUMMARY JUDGMENT AND DENYING MOTION TO
E. SCHREIER, UNITED STATES DISTRICT JUDGE.
Jeremy Bauer, is an inmate at the South Dakota State
Penitentiary (SDSP) in Sioux Falls. He filed a pro se civil
rights lawsuit under 42 U.S.C. § 1983. Docket 1.
Currently pending are a motion for summary judgment filed by
Bauer, a motion for summary judgment filed by defendant,
Jacob Glaser, and a motion to amend filed by Bauer. Dockets
40, 47, 56. For the reasons stated below, the court denies
Bauer's motion for summary judgment, denies Bauer's
motion to amend, and grants Glaser's motion for summary
24, 2013, Bauer was sentenced to thirty years at the SDSP
following his state court conviction for first degree rape.
Docket 49 ¶¶ 1-2; Docket 49-6 at 1. On June 6,
2013, Bauer appealed his conviction to the South Dakota
Supreme Court. Docket 49 ¶¶ 1-2; Docket 49-6 at 1.
The South Dakota Supreme Court affirmed Bauer's
conviction on July 16, 2014. Docket 49 ¶ 2; see also
State v. Bauer, 851 N.W.2d 711 (S.D. 2014).
8, 2015, Bauer filed a petition for habeas corpus in state
court. Docket 49 ¶ 3; Docket 49-6 at 1. A state circuit
court judge denied Bauer's habeas petition on September
21, 2015. Docket 49 ¶ 3; Docket 49-6 at 1. The circuit
court judge also declined to issue Bauer a certificate of
probable cause, finding that no appealable issues existed.
Docket 49 ¶ 3; Docket 49-6 at 23. Under SDCL §
21-27-18.1, Bauer had twenty days following the circuit court
judge's refusal to issue a certificate of probable cause
to file a separate motion for the issuance of a certificate
of probable cause with the South Dakota Supreme Court. Docket
49 ¶ 4 (citing SDCL § 21-27-18.1).
SDSP mailroom received the circuit court judge's order
denying Bauer's habeas petition on September 23, 2015.
Docket 1 at 5. On September 26, 2015, Jacob Glaser, the Unit
Coordinator (UC) in charge of delivering legal mail to
inmates and assigning inmate jobs, delivered the circuit
court's order to Bauer. Id. at 5-6. According to
Bauer's proposed amended complaint, Bauer should have
received the circuit court judge's order from Glaser no
later than on September 24, 2015. Docket 56-1 ¶ 11.
Glaser contends that he attempted to page Bauer multiple
times to pick up his mail but that Bauer did not pick up his
mail until September 26, 2015. Docket 14 ¶ 7; Docket
56-1 ¶ 12.
receiving the circuit court's denial of his habeas
petition, Bauer prepared a motion for certificate of probable
cause and a motion to appoint counsel that he intended to
submit to the South Dakota Supreme Court. Docket 42 ¶ 4.
Bauer had these legal documents notarized on October 5, 2015,
and made eight copies of the documents. Id. ¶
5. According to Bauer, he delivered eight pieces of legal
mail-one addressed to the South Dakota Attorney General, one
addressed to the Pennington County State's Attorney, and
six addressed to the South Dakota Supreme Court-to Glaser for
mailing on October 6, 2015. Id. ¶¶ 4-7.
Glaser argues that Bauer delivered only the legal mail
addressed to the South Dakota Attorney General and to the
Pennington County State's Attorney on October 6, 2015.
Docket 49 ¶ 12. The six pieces of legal mail addressed
to the South Dakota Supreme Court, according to Glaser, were
not delivered to Glaser for mailing until October 7, 2015.
Id. ¶ 13.
October 7, 2015, Glaser called Bauer into his office to
notify Bauer that in order to send his legal mail, Bauer
would have to execute a money transfer order to pay for the
postage of four of the letters addressed to the South Dakota
Supreme Court. Docket 42 ¶ 7; Docket 49 ¶ 14.
Bauer signed the money transfer order that same day, which
authorized the prison to take $11.84 out of his prisoner
trust account to pay for the postage on his legal mail.
Docket 42 ¶ 8; Docket 49 ¶ 14. Upon receipt of the
money transfer order, Bauer's remaining legal mail was
processed and posted on October 8, 2015. Docket 49 ¶ 15.
alleges that DOC Mail Policy states that outgoing
“privileged/legal mail is not required to have the
postage attached.” Docket 42 ¶ 10 (quoting DOC
Mail Policy 1.5.D.3(IV)(6)(A)). Bauer further alleges that
under the DOC's Mail Policy, the documents he submitted
for mailing qualify as legal mail. Id. ¶ 11.
Glaser does not disagree that under DOC Mail Policy
1.5.D.3(IV)(6)(A), Bauer was not required to attach postage
to his outgoing legal mail or that the documents sent here
qualified as “legal mail” under the policy.
See Docket 53 ¶¶ 10-11. Glaser argues,
however, that under the DOC's Mail Policy, prisoners at
the SDSP are not entitled to unlimited free legal mail.
Docket 49 ¶ 7.
to Bauer's calculations, the motion for a certificate of
probable cause that he delivered to Glaser on October 6,
2015, was not due to the South Dakota Supreme Court until
October 14, 2015, at the earliest. Docket 1 at 8-9. The South
Dakota Supreme Court received Bauer's motion for a
certificate of probable cause on October 13, 2015. Docket 42
¶ 12. On October 20, 2015, in an order signed by Chief
Justice David Gilbertson, the South Dakota Supreme Court
dismissed Bauer's motion because it was filed twenty-two
days after entry of the circuit court's order. Docket 42
¶ 13; see also Docket 49-7 (copy of the South
Dakota Supreme Court's order dismissing Bauer's
motion for a certificate of probable cause).
the twenty-day limit set forth under SDCL § 21-27-18.1
for Bauer to file his motion for a certificate of probable
cause with the South Dakota Supreme Court, other state
statutes impact the calculation of Bauer's twenty day
period. Docket 49 ¶ 4. For example, under SDCL §
15-6-6(a), September 21, 2015-the day the circuit
court issued its order denying Bauer's habeas petition-is
excluded from the computation of Bauer's twenty days.
Id. (citing SDCL § 15-6-6(a)). Under this same
statute, the last day of the computation is not included if
that day falls on a Saturday, a Sunday, or a legal holiday.
Id. (citing SDCL § 15-6-6(a)). Here, the
twentieth day after, but including September 22, 2015, was
Sunday, October 11, 2015. Id. Thus, under SDCL
§ 15-6-6(a), that day should have been excluded from
computation when determining the timeliness of Bauer's
motion. See Id. (citing SDCL § 15-6-6(a)). The
next day, Monday, October 12, 2015, also should have been
excluded from computation because it was Native American Day,
a legal holiday under SDCL § 1-5-1. Id. Thus,
Bauer's motion for a certificate of probable cause should
have been due on Tuesday, October, 13, 2015, which is the day
on which the South Dakota Supreme Court indicated it received
the motion. Id.
receiving notice that the South Dakota Supreme Court denied
his motion for a certificate of probable cause as being
untimely filed, Bauer had an additional twenty-days to file a
petition for reinstatement (referred to as a motion for
reconsideration by the parties) of his motion with the South
Dakota Supreme Court under SDCL § 15-26A-91. See
Id. ¶ 21; Docket 42 ¶ 19. The twentieth day
after October 20, 2015, was November 9, 2015. Docket 49
to Bauer, on November 16, 2015, he had notarized an affidavit
in support of his motion for reconsideration and his proof of
service for his motion for reconsideration. Docket 42 ¶
14. That same day, Bauer delivered to Glaser a motion for
reconsideration, a notarized affidavit in support, and a
notarized proof of service, for mailing to the South Dakota
Supreme Court, the Pennington County State's Attorney,
and the South Dakota Attorney General. Id. ¶
15. Consistent with the DOC's Mail Policy, the SDSP
covered the postage for Bauer's mail to the South Dakota
Supreme Court and to the South Dakota Attorney General.
Docket 49 ¶ 18. Bauer, also alleges that later on
November 16, 2015, Glaser approached Bauer and required him
to execute a money transfer order before processing the
letter to the Pennington County State's Attorney. Docket
42 ¶ 16. Bauer contends that this money transfer order
was not signed by Glaser until November 19, 2015, and that
all of the legal mail he delivered to Glaser on November 16,
2015, was not actually delivered to the SDSP mail room until
November 19, 2015. Id. ¶ 17.
does not disagree that Bauer executed a money transfer order
on November 16, 2015, to send his mail to the Pennington
County State's Attorney or that the SDSP covered the
postage for the rest of Bauer's legal mail. Docket 49
¶¶ 17-19. Glaser does disagree with Bauer's
recollection of dates regarding when Bauer's mail was
sent. First, Glaser states that he processed Bauer's
legal mail on November 17, 2015. Id. ¶ 19.
Second, Glaser contends that Bauer's mail was actually
mailed on November 18, 2015, which is the day they are
postmarked. Id. ¶ 20 (citing Docket 49-5).
November 24, 2015, the Chief Deputy for the South Dakota
Supreme Court sent Bauer a letter returning his motion for
reconsideration, his affidavit in support, and his proof of
service to him as unfiled under SDCL § 15-26A-91. Docket
42 ¶ 19; see also Docket 56-13 (copy of the
South Dakota Supreme Court's letter). According to Bauer,
under SDCL §§ 15-6-6(a) and (e), the due date for
his motion to reconsider was November 23, 2015. Docket 42
April 20, 2016, Bauer filed a complaint alleging violations
of his right of access to the courts and his rights under the
Due Process and Equal Protection Clauses. Docket 1. The court
screened Bauer's complaint and dismissed all defendants
other than Glaser and all claims other than Bauer's
access to the courts claims. Docket 9. Bauer has two access
to the courts claims: (1) Glaser delayed sending Bauer's
motion for certificate of probable cause to the South Dakota
Supreme Court, and (2) Glaser delayed sending Bauer's
motion to reconsider to the South Dakota Supreme Court. On
August 10, 2016, Glaser moved for summary judgment, arguing
that Bauer failed to exhaust his claims through the prison
grievance system. Docket 16. In response, Bauer moved to
amend his complaint. Docket 29. His first proposed amended
complaint attempted to cure the deficiencies of his Equal
Protection claim and responded to Glaser's motion for
summary judgment. Id.
February 1, 2017, the court denied Glaser's motion for
summary judgment and denied Bauer's motion to amend.
Docket 35. Specifically, the court concluded that Bauer
properly exhausted his claims under the SDSP's grievance
procedure. Id. at 8. The court denied Bauer's
motion to amend because Bauer's proposed amendments were
futile. Id. at 9. Also on February 1, 2017, the
court lifted its stay on discovery in this case. Docket 36.
March 2, 2017, Bauer moved for summary judgment. Docket 40.
On March 29, 2017, the court granted Glaser's motion for
a protective order and to stay discovery of this matter until
the court determined the issue of qualified immunity. Docket
46. Glaser filed his motion for summary judgment on April 7,
2017. Docket 47. In response, Bauer filed a second motion to
amend his complaint on July 7, 2017. Docket 56. Bauer's
second proposed amended complaint seeks to restate his former
count one, add a claim for retaliation, and respond to
Glaser's motion for summary judgment. Id.
judgment is appropriate if the movant “shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The moving party can meet this burden by
presenting evidence that there is no dispute of material fact
or by showing that the nonmoving party has not presented
evidence to support an element of its case on which it bears
the ultimate burden of proof. Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). To avoid summary
judgment, “[t]he nonmoving party may not rest on mere
allegations or denials, but must demonstrate on the record
the existence of specific facts which create a genuine issue
for trial.” Mosley v. City of Northwoods, 415
F.3d 908, 910 (8th Cir. 2005) (quotation omitted).
who proceed pro se are entitled to the benefit of liberal
construction at the pleading stage. Quam v. Minnehaha
Cty. Jail, 821 F.2d 522, 522 (8th Cir. 1987).
Nonetheless, the summary judgment standard set forth in Rule
56 of the Federal Rules of Civil Procedure remains applicable
to prisoners proceeding pro se. Id. The district
court is not required to “plumb the record in order to
find a genuine issue of material fact.” Barge v.
Anheuser-Busch, Inc., 87 F.3d 256, 260 (8th Cir. 1996).
Courts must remain sensitive, however, “to the special
problems faced by prisoners attempting to proceed pro se in
vindicating their constitutional rights, and [the Eighth
Circuit does] not approve summary dismissal of such pro se
claims without regard for these special problems.”
Nickens v. White, 622 F.2d 967, 971 (8th Cir. 1980).
“When dealing with summary judgment procedures the
technical rigor is inappropriate where . . . uninformed
prisoners are involved.” Ross v. Franzen, 777
F.2d 1216, 1219 (7th Cir. 1985).
decision whether to allow a party to amend [his] complaint is
left to the sound discretion of the district court . . .
.” Popoalii v. Corr. Med. Servs., 512 F.3d
488, 497 (8th Cir. 2008) (citations omitted). “A party
may amend its pleading once as a matter of course within . .
. 21 days after serving it.” Fed.R.Civ.P. 15(a)(1)(A).
“In all other cases, a party may amend its pleading
only with the opposing party's written consent or the
court's leave.” Fed.R.Civ.P. 15(a)(2). Motions to
amend should be freely given in ...