Bowles v. Walters et al

Filing 11

ORDER granting 9 Motion to Amend/Correct, dismissing complaint, and assessing first strike. Signed by U.S. District Judge Karen E. Schreier on 12/8/15. (SLW)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
WADE ELLIOT BOWLES,

4:15-CV-04073-KES

Plaintiff,
vs.
SONNY WALTERS, Contract Attorney,
Mike Durfee State Prison; DENNIS
KAEMINGK, Secretary of Corrections,
South Dakota State Penitentiary;
ROBERT DOOLEY, Warden, Mike
Durfee State Prison; JENNIFER
STANWICK, Associate Warden, Mike
Durfee State Prison; DARREN YOUNG,
Warden, South Dakota Penitentiary,

ORDER GRANTING MOTION TO
AMEND, NOT ADOPTING REPORT
AND RECOMMENDATION,
AND DISMISSING CASE

Defendants.
Petitioner, Wade Elliot Bowles, an inmate at the Mike Durfee State
Prison, filed a complaint pursuant to 42 U.S.C. § 1983 on April 9, 2015.
Docket 1. The matter was referred to Magistrate Judge Veronica L. Duffy
pursuant to 28 U.S.C. § 636(b)(1)(B) and this court’s October 16, 2014
standing order. Magistrate Judge Duffy screened Bowles’ complaint and
recommends that it be dismissed for failure to state a claim upon which relief
may be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
Docket 8 at 1-2. Bowles objects to the report and recommendations and moves
to amend his complaint. Docket 9. He also filed a supplemental brief in support
of his claims. Docket 10. For the following reasons, the report and

recommendation is not adopted, Bowles’ motion to amend is granted, and his
amended complaint is dismissed.
FACTUAL BACKGROUND
According to his amended complaint, Bowles requested copies of his
habeas appeal petition from Sonny Walters, the prison contract attorney at
Mike Durfee State Prison, so he could file it in the Eighth Circuit Court of
Appeals. Docket 9 at 1. One of the arguments raised in his habeas petition was
that South Dakota was violating federal law by prosecuting American Indians,
including Bowles, for crimes that were committed in Indian Country. Id. at 2.
Bowles’ petition was 52 pages long. Id. This included transcripts from his
original court proceedings. Id. He claims he was forced to leave some of these
transcripts out of his final petition so he could present his argument and
receive copies for all of the parties he intended to “serve.” Id. Bowles wanted
copies to send to the Eighth Circuit Court of Appeals, the Solicitor General, the
Crow Creek Tribal Chairman, the Secretary of the Interior, Governor Dennis
Daugaard, the Bureau of Indian Affairs (“BIA”), Attorney General Marty
Jackley, U.S. Attorney General Eric Holder (now Loretta Lynch), and the
President of the United States. Id. at 4. He also wanted a copy for himself. Id.
When Bowles requested ten copies of his petition, Walters refused, saying those
parties did not need a copy. Id. at 3. Bowles requested 520 pages of copies and
was given 208. Id.

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On April 9, 2015, Bowles filed this complaint. Docket 1. A month later,
he filled out a § 1983 complaint form with the same information. Docket 3. He
claims Walters denied him access to the courts by refusing to give him 10
complete copies of his petition. Id. All other defendants are sued only in their
role as Walters’ supervisors. Docket 9 at 7.
The case was referred to Magistrate Judge Duffy for screening pursuant
to 28 U.S.C. § 1915. Docket 8. Magistrate Judge Duffy recommends dismissal
of all defendants except Walters because they were sued only in their
supervisory roles, which § 1983 does not permit. Id. at 8. As to Walters,
Magistrate Judge Duffy recommends that Bowles’ complaint be dismissed for
failure to state a First Amendment claim because he did not show that a
nonfrivilous legal claim was impeded or frustrated. Id. at 11. She also
recommends dismissal of the complaint because Bowles failed to exhaust his
claims. Id. at 13.
Bowles objects to these recommendations. He filed a document which he
called a “Motion to Amend Civil Rights Complaint and Objections to Report and
Recommendation.” Docket 9. Bowles does not clearly delineate between the
sections which are meant to be a motion, an amended complaint, or objections.
LEGAL STANDARD
The court must accept the well-pleaded allegations in the complaint as
true and draw all reasonable inferences in favor of the non-moving party.
Schriener v. Quicken Loans, Inc., 774 F.3d 442, 444 (8th Cir. 2014). Civil rights
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and pro se complaints must be liberally construed. Erickson v. Pardus, 551
U.S. 89, 94 (2007) (citation omitted); Bediako v. Stein Mart, Inc., 354 F.3d 835,
839 (8th Cir. 2004). Even with this construction, “a pro se complaint must
contain specific facts supporting its conclusions.” Martin v. Sargent, 780 F.2d
1334, 1337 (8th Cir. 1985); Ellis v. City of Minneapolis, 518 F. App’x 502, 504
(8th Cir. 2013). Civil rights complaints cannot be merely conclusory. Davis v.
Hall, 992 F.2d 151, 152 (8th Cir. 1993).
A complaint “does not need detailed factual allegations . . . [but] requires
more than labels and conclusions, and a formulaic recitation of the elements of
a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). “If a plaintiff cannot make the requisite showing, dismissal is
appropriate.” Beavers v. Lockhart, 755 F.2d 657, 663 (8th Cir. 1985).
DISCUSSION
As an initial matter, Bowles moves to amend his complaint. A motion for
leave to amend is committed to the sound discretion of the district court. Bell
v. Allstate Life Ins. Co., 160 F.3d 452, 454 (8th Cir. 1998). “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). Bowles’ complaint has not been served. The court
grants Bowles leave to amend his complaint and accepts his filing, (Docket 9),
as an amended complaint.
Bowles’ amended complaint is nearly identical to his original complaint.
He explains why he wanted to send his petition to certain parties and expands
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his arguments, but his claim remains essentially the same: denial of access to
the courts. Docket 9.
I.

Supervisory Liability Is Inapplicable to § 1983 Claims
Bowles names Kaemingk, Dooley, Stanwick, and Young as defendants in

their supervisory capacity. “[V]icarious liability is inapplicable to § 1983
suits[.]” Parrish v. Ball, 594 F.3d 993, 1001 (8th Cir. 2010). “[E]ach
Government official, his or her title notwithstanding, is only liable for his or her
own misconduct.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)). A
supervisor’s liability must be based on his or her own “deliberate indifference
or tacit authorization.” Grayson v. Ross, 454 F.3d 802, 811 (8th Cir. 2006)
(quoting White v. Holmes, 21 F.3d 277, 280 (8th Cir. 1994)). Bowles sues these
defendants in their supervisory capacity only. The amended complaint states,
“Walters receives his directions and instructions from someone here in this
prison, namely one or all of the named defendants in this petition. . . .
Whomever it is needs to be held accountable and the other defendants who are
not liable can be withdrawn from this petition.” Docket 9 at 7. Because Bowles’
claims against Kaemingk, Dooley, Stanwick, and Young arise only from their
supervisory roles, they are dismissed.
II.

Bowles’ Fails To State a Claim Upon Which Relief May Be Granted
For Violation of His First Amendment Right To Access the Courts
The United States Supreme Court has “consistently required States to

shoulder affirmative obligations to assure all prisoners meaningful access to
the courts.” Bounds v. Smith, 430 U.S. 817, 824 (U.S. 1977). In order to
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establish a claim for denial of access to the courts under Bounds, Bowles must
show actual injury. “ ‘Insofar as the right vindicated by Bounds is concerned,
meaningful access to the courts is the touchstone, and the inmate therefore
must go one step further and demonstrate that the alleged shortcomings in the
library or legal assistance program hindered his efforts to pursue a legal
claim.’ ” Beaulieu v. Ludeman, 690 F.3d 1017, 1046-47 (8th Cir. 2012) (quoting
Lewis v. Casey, 518 U.S. 343, 351 (1996)).
While Bowles explains his position more fully in his amended complaint
than in his initial complaint, the underlying issue remains: he fails to show
how Walters “hindered his efforts to pursue a legal claim.” Much of Bowles’
amended complaint focuses on the merits of his habeas claim. This is not the
issue. He fails to show how the effort to pursue his claim was hindered
because he did not have a sufficient number of copies. The court will examine
Bowles’ arguments individually, but this issue exists throughout his amended
complaint.
According to the amended complaint, Walters denied Bowles ten copies
of his petition and gave him only four. Docket 9 at 3. Bowles claims this
restricted his ability to make his argument to the Eighth Circuit Court of
Appeals. Id. Bowles states, however, “Petitioner was able to get most of his
argument as well as service to the legal entities, all at the same time, but they
did not receive all of my argument the way it was initially presented.” Id. at

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5-6. As a general matter, culling a brief to a manageable size is something all
litigants must do, whether they are pro se, prisoners, or anyone other litigant.
A.

Bowles’ Inability To Send a Copy of His Petition to the Solicitor
General Did Not Violate His First Amendment Right To Access
the Courts

Bowles argues that Walters’ refusal to print extra copies for him
prohibited him from sending a copy of his petition to the United States
Solicitor General. Docket 9 at 2. In his amended complaint, Bowles argues that
United States Supreme Court Rule 29 requires him to send a copy to the
Solicitor General. The subsection of the rule he refers to states:
In any proceeding in this Court in which the constitutionality of an
Act of Congress is drawn into question, and neither the United
States nor any federal department, office, agency, officer, or
employee is a party, the initial document filed in this Court shall
recite that 28 U.S.C. § 2403(a) may apply and shall be served on
the Solicitor General of the United States . . . .
U.S. Sup. Ct. R. 29(4)(b).
This rule, however, applies to proceedings and filings in the Supreme
Court. Bowles’ complaint concerns his appeal to the Eighth Circuit Court of
Appeals. Because this rule is inapplicable to his appeal, Bowles had no need to
send a copy of his petition to the Solicitor General.
B.

Bowles’ Inability To Send a Copy of His Petition to His Tribe
and the BIA Did Not Violate His First Amendment Right To
Access the Courts

Bowles argues that Walters’ refusal to print extra copies for him
prohibited him from sending his petition to his tribe and the BIA. Docket 9 at

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2-3. He claims that under 25 U.S.C. § 1331, 1 he must send a copy to both.
This section states:
Notwithstanding any other provision of law, if any application
made by an Indian, Indian tribe, Indian council, or any band or
group of Indians under any law requiring the approval of the
Secretary of the Interior or the Commissioner of Indian Affairs of
contracts or agreements relating to the employment of legal
counsel (including the choice of counsel and the fixing of fees) by
any such Indians, tribe, council, band, or group is neither granted
nor denied within ninety days following the making of such
application, such approval shall be deemed to have been granted.
25 U.S.C. § 1331.
This section does not apply to Bowles’ appeal, and he does not explain
how it applies. The section requires Indian tribes to obtain federal
governmental approval before hiring an attorney. It is inapplicable to Bowles’
appeal, and he had no legal obligation to send a copy of his petition to his tribe
or the BIA.
C.

The Case Law Bowles Cites Does Not Support His Claim

Bowles cites Christopher v. Harbury, 536 U.S. 403 (2002), to argue that
his claim has been “frustrated or impeded.” Docket 9 at 4. Bowles argues that
Christopher supports his allegation that his failure to obtain as many copies as
he wanted caused his potentially meritorious claim to fail. Id. The discussion
in Christopher, however, concerns the validity of the plaintiff’s underlying
claim. This reflects Bowles’ misunderstanding of the issue discussed above and
in the report and recommendation: it is frustration of his claim that he fails to

1

Bowles cites this section as 25 U.S.C.A. § 1301, P.L. 104-133.
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show, rather than the merit of his underlying claim. In Christopher, the Court
states that official acts frustrating litigation must be described in the
complaint. Id. at 415.
Bowles cites Lewis v. Casey, 518 U.S. 343 (1996) to support his claim.
Lewis discusses the degree to which a court can dictate to the executive
branch, including a department of prisons, the methodology it must employ in
order to comply with the right of prisoners’ to access the courts. Id. To state a
denial of access claim, the Court stated, an inmate must “demonstrate that the
alleged shortcomings in the library or legal assistance program hindered his
efforts to pursue a legal claim.” Id. at 351. The Court offers a number of
examples of this injury. The example most similar to Bowles’ complaint is: a
prisoner’s complaint which is “dismissed for failure to satisfy some technical
requirement which, because of deficiencies in the prison's legal assistance
facilities, he could not have known.” Id. at 351. Bowles does not show any
“deficiency” in the prison’s legal facilities because he does not explain why he
must have ten copies to appeal his denial of habeas relief. Lewis does not
support Bowles’ claims.
D.

Failure to Exhaust Bars Bowles’ Claims

Bowles argues that his claim should not be dismissed for failure to
exhaust prison administrative remedies. Docket 9 at 6. He argues that the
exhaustion requirement does not apply to habeas actions. Id. He also argues

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that there is an exception to exhaustion in habeas actions when exhaustion
would be futile or cause irreparable harm. Id.
The underlying basis for Bowles’ denial of access to courts claim
concerns a habeas petition. But the present matter is a § 1983 action. Under
28 U.S.C. § 1983, “An inmate must exhaust all available administrative
remedies before bringing a § 1983 suit.” Porter v. Sturm, 781 F.3d 448, 451
(8th Cir. 2015) (quoting 42 U.S.C. § 1997e(a); Jones v. Bock, 549 U.S. 199, 211
(2007); Burns v. Eaton, 752 F.3d 1136, 1141 (8th Cir. 2014)). “It does not
matter that the inmate ‘subjectively believed that there was no point in his
pursuing administrative remedies.’ ” Id. (quoting Lyon v. Vande Krol, 305 F.3d
806, 809 (8th Cir. 2002) (en banc)). Bowles claims that it would be futile for
him to exhaust his administrative remedies. Docket 9 at 6. His claim of futility,
however, is inapplicable to his § 1983 claim.
Bowles also claims that his failure to exhaust can be excused because of
irreparable harm. Id. He does not cite any legal support or explain how
Walters’ refusal to give him extra copies of his petition caused him irreparable
harm. Therefore, Bowles’ failure to exhaust is not excused.
Bowles argues that he should not have to plead exhaustion. In Jones,
the Supreme Court concluded “that failure to exhaust is an affirmative defense
under the PLRA, and that inmates are not required to specially plead or
demonstrate exhaustion in their complaints.” 549 U.S. at 216. But, the Court
also stated, “There is no question that exhaustion is mandatory under the
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PLRA and that unexhausted claims cannot be brought in court.” Id. at 211
(citing Porter v. Nussle, 534 U.S. 516, 524 (2002)). The Eighth Circuit Court of
Appeals has found dismissal under § 1915A appropriate when documents filed
in the district court show that plaintiff has not exhausted his claims before
filing his complaint. Houston v. Norris, 220 F. App’x 442, 443 (8th Cir. 2007).
Bowles states in his amended complaint that he has not exhausted his claim.
Therefore, his claim is barred.
The remainder of Bowles’ amended complaint consists of grievances
about his attorney and the court proceedings in his criminal case. He does not
explain how this relates to his current amended complaint other than showing
the merit of his underlying claim, which the court has explained is not the
reason for dismissal.
III.

This Dismissal Constitutes Bowles’ First Strike

The court considers dismissal of this lawsuit a first “strike” for purposes
of the Prison Litigation Reform Act. 28 U.S.C. § 1915(g) provides:
In no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding under this section if the
prisoner has, on 3 or more prior occasions, while incarcerated or
detained in any facility, brought an action or appeal in a court of
the United States that was dismissed on the grounds that it is
frivolous, malicious, or fails to state a claim upon which relief may
be granted, unless the prisoner is under imminent danger of
serious physical injury.
CONCLUSION
Bowles complains that he was denied access to the courts by Walters’
refusal to print him copies of his petition for appeal in his habeas action. He
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was given 208 pages, more than enough to file his petition with the Eighth
Circuit Court of Appeals. He does not present law or fact which shows that he
was denied access to the courts. It is ORDERED
1. Bowles’ motion to amend his complaint (Docket 9) is granted.
2. Magistrate Judge Duffy’s report and recommendation (Docket 8) is not
adopted because it is moot.
3. Bowles’ complaint (Docket 3) is dismissed without prejudice for failure
to state a claim upon which relief may be granted pursuant to 28
U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
4. This action constitutes the first strike against Bowles for purposes of
the three-strike rule under 28 U.S.C. § 1915(g).
Dated December 8, 2015.
BY THE COURT:

/s/ Karen E. Schreier

KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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