Bauer v. Glaser et al

Filing 35

ORDER denying 16 Motion for Summary Judgment; denying 29 Motion to Amend/Correct. Signed by U.S. District Judge Karen E. Schreier on 2/1/17. (SLW)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
JEREMY BAUER,

4:16-CV-04055-KES
Plaintiff,

vs.

ORDER DENYING MOTION FOR
SUMMARY JUDGMENT AND
DENYING MOTION TO AMEND

JACOB GLASER,
Defendant.

Plaintiff, 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. Defendant, Jacob Glaser, now moves for summary
judgment. Docket 16. In response, Bauer moves to amend his complaint.
Docket 29. For the reasons stated below, both motions are denied.
PROCEDURAL BACKGROUND
On 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 proposed
amended complaint attempts to cure the deficiencies of his Equal Protection
claim and responds to Glaser’s motion for summary judgment. Id.
LEGAL STANDARD
Summary 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).
“A party opposing a properly supported motion for summary judgment
may not rest on mere allegations or denials, but must set forth specific facts in
the record showing that there is a genuine issue for trial.” Denn v. CSL Plasma,
Inc., 816 F.3d 1027, 1032 (8th Cir. 2016) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 256 (1986)). For purposes of summary judgment, the facts,
and inferences drawn from those facts, are “viewed in the light most favorable
to the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (quoting United States v. Diebold, Inc., 369 U.S.
654, 655 (1962)).

2

DISCUSSION
I.

Glaser’s Motion for Summary Judgment.
Glaser argues he is entitled to summary judgment because Bauer has

failed to exhaust his administrative remedies. Under the Prison Litigation
Reform Act (PLRA), “[n]o action shall be brought with respect to prison
conditions under section 1983 . . . by a prisoner confined in any jail, prison, or
other correctional facility until such administrative remedies as are available
are exhausted.” 42 U.S.C. § 1997e(a). The purpose of the exhaustion
requirement is to afford corrections officials the opportunity to address inmate
complaints internally before such matters are litigated. Johnson v. Jones, 340
F.3d 624, 627-28 (8th Cir. 2003) (quoting Porter v. Nussle, 534 U.S. 516, 524–
25 (2002)). “In some instances, corrective action taken in response to an
inmate's grievance might improve prison administration and satisfy the inmate,
thereby obviating the need for litigation.” Id. at 628 (quoting Porter, 534 U.S. at
524–25).
To satisfy the PLRA's exhaustion requirement,
prisoners must ‘complete the administrative review process in
accordance with the applicable procedural rules,’-rules that are
defined not by the PLRA, but by the prison grievance process itself.
Compliance with the prison grievance procedures, therefore, is all
that is required by the PLRA to ‘properly exhaust.’ The level of
detail necessary in a grievance to comply with grievance
procedures will vary from system to system and claim to claim, but
it is the prison's requirements, and not the PLRA, that define the
boundaries of proper exhaustion.
Jones v. Bock, 549 U.S. 199, 218 (2007) (quoting Woodford v. Ngo, 548 U.S. 81,
88 (2006)).
3

The South Dakota Department of Corrections’ procedure for an
administrative remedy requires that, prior to filing a lawsuit, an inmate must
follow a two-step process. Docket 18-2 at 3. First, the inmate must file an
Informal Resolution Request. Id. Second, if the issue is not resolved, the inmate
must file a Request for Administrative Remedy. Id. Glaser moves for summary
judgment, arguing that Bauer did not exhaust his remedies through the prison
grievance system before he filed this § 1983 action.
A.

Delay of Certificate of Probable Cause.

Bauer alleges that Glaser delayed sending his motion for certificate of
probable cause to the South Dakota Supreme Court, and as a result, the South
Dakota Supreme Court dismissed his motion as untimely. Glaser concedes that
Bauer filed an Informal Resolution Request and therefore satisfied the first step
of the SDDOC grievance procedure. Docket 17 at 5. But Glaser contends that
Bauer did not file an Administrative Remedy Request as is required at step two
of the grievance procedure. Id.
In his amended complaint, Bauer alleges that he filed his Administrative
Remedy Request on November 11, 2015, by putting it in Glaser’s mail box.
Docket 29-1 ¶ 30. He further alleges that Glaser did not respond. Id. ¶ 37. In
his Reply Brief, Glaser states, “Plaintiff has not submitted a copy of ARR
#11881 he allegedly submitted.” Docket 31 at 4. This is not true. Bauer
attached a copy of a Request for Administrative Remedy to his proposed
amended complaint. Docket 29-11. Although it is not signed and Glaser avers
there is no record of this being filed, the facts must be viewed in the light most
4

favorable to Bauer, the non-moving party. Therefore, the record does not
demonstrate that Glaser, the moving party, is entitled to judgment as a matter
of law, and Glaser’s motion for summary judgment is denied as to this claim.
See also Conner v. Doe, 285 F. App’x 304 (8th Cir. 2008) (finding that a jail’s
grievance officer’s declaration that there was no record of plaintiff filing a
grievance insufficient to establish failure to exhaust in the face of plaintiff’s
assertion in his complaint that he had filed relevant grievances but did not
receive copies of them or responses to them).
B.

Delay of Motion to Reconsider

Bauer alleges that Glaser delayed sending his motion to reconsider, an
affidavit in support of his motion, and proof of service to the South Dakota
Supreme Court. Glaser argues that Bauer failed to exhaust this claim. On
December 3, 2015, Bauer filed an Informal Resolution Request numbered
12350. Docket 29-15. The Informal Resolution Request is vague, but in it
Bauer complains about the legal mail system. Id. After that request was
rejected, Bauer filed a Request for Administrative Remedy in which he
describes in detail the issue raised in his motion to reconsider. Docket 29-15 at
3-4.
Defendants argue that this Request for Administrative Remedy did not
satisfy the SDDOC procedure and his grievance was therefore unexhausted.
Docket 31 at 4. Bauer’s grievance was rejected because he did not fill out the
space on the Request for Administrative Remedy form that consists of a single

5

paragraph, and instead wrote “see attached” in this space and attached three
full pages of facts. See Docket 29-18.
Bauer alleges that he followed the grievance procedure because it does
not prohibit attaching additional pages. Docket 29-1 ¶ 44 (citing Docket 29-15).
He is correct. The Inmate Living Guide, Docket 18-1, the relevant SDDOC
policy, Docket 18-2, and the Affidavit of Deputy Warden Jennifer Dreiske
outline the proper procedure for filing grievances, and none of them mention a
procedural rule that prisoners cannot use extra sheets of paper without
completely filling out the paragraph on the Request for Administrative Remedy
form. The Request for Administrative Remedy form itself states, “Use additional
paper if necessary.” Docket 29-18. Further, Bauer’s Informal Resolution
Request was filled out in the exact same manner, but this alleged defect was
not mentioned in the response to his request. See Docket 29-16.
Glaser cites Jones, 549 U.S. 199, in support of his motion. In Jones, the
United States Supreme Court found that a prisoner could bring a § 1983 claim
against defendants that he had not named in his original grievance. Id. In
making this determination, the court followed Woodford, in holding that “to
properly exhaust administrative remedies prisoners must ‘complete the
administrative review process in accordance with the applicable procedural
rules,’-rules that are defined not by the PLRA, but by the prison grievance
process itself.” Jones, 549 at 218 (quoting Woodford, 548 U.S. at 88). The Court
looked at the prison rules and found that they “required only that prisoners be
as specific as possible’ in their grievances, . . . [and] advised them to ‘[b]e brief
6

and concise[,]’ ” but the rules did not require prisoners “to identify a particular
responsible party . . . .” Id. The Court held that this identification was not
necessary for proper exhaustion because “[n]othing in the MDOC policy itself
supports the conclusion that the grievance process was improperly invoked
simply because an individual later named as a defendant was not named at the
first step of the grievance process.” Id.
The same is true here. Nothing in the SDDOC policy states that
grievances will be denied because a prisoner files them on attached pieces of
paper. The policy suggests that is allowable. Also, an earlier grievance filed in
the same fashion was not denied on procedural grounds.
Glaser also cites Woodford, 548 U.S. 81, in which the Supreme Court
found that proper exhaustion is required under the PLRA. There, the Court was
concerned with prisoners who do not want to participate in the prison
grievance system and who wish to bypass available administrative remedies
and go directly to court. Id. at 95. This worry does not apply to Bauer. The
record shows that he tried to file administrative remedies multiple times. The
record does not show a prisoner attempting to bypass the prison’s system, but
shows Bauer honestly presenting his claims to prison officials.
The benefits of an exhaustion requirement “are fully realized when an
inmate pursues the prison grievance process to its final stage and receives an
adverse decision on the merits,” and that this creates a “complete
administrative record[,]” giving the court “the benefit of the agency's
institutional perspective.” Hammett v. Cofield, 681 F.3d 945, 947-48 (8th Cir.
7

2012). That does not fully exist here. The Supreme Court, however, has also
“identified the benefits of exhaustion to include allowing a prison to address
complaints about the program it administers before being subjected to suit,
reducing litigation to the extent complaints are satisfactorily resolved, and
improving litigation that does occur by leading to the preparation of a useful
record.” Jones, 549 U.S. at 219. None of these benefits are furthered by finding
Bauer’s claims unexhausted.
The cases cited by Glaser allow prisons to set up an administrative
remedy procedure in order to control the grievance system and to ensure that
prisoners properly present their grievances to prison officials before bringing
suit in court. They do not allow prisons to create unwritten rules that prevent
prisoners from fully exhausting their grievances. Bauer followed the letter of
the law of the grievance procedures and completely satisfied the spirit of the
procedure by “put[ting] the facts squarely before prison officials[,]” as defendant
explains it. Bauer’s grievances outlined the issues he raised and made prison
officials aware of all of the pertinent facts on which he based his arguments.
Therefore, viewing the record in the light most favorable to Bauer, Glaser is not
entitled to judgment as a matter of law.
II.

Bauer’s Motion to Amend.
“A 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.
8

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 order to promote justice
but may be denied when such an amendment would be futile. Plymouth Cty. v.
Merscorp, Inc., 774 F.3d 1155, 1160 (8th Cir. 2014).
Bauer’s motion is denied because it is futile. In his motion to amend,
Bauer accepts the dismissal of defendants other than Glaser and dismissal of
his Due Process claim. Docket 29 at ¶¶ 3-4. He argues that his amended
complaint cures the deficiencies in his Equal Protection claim pointed out by
this court and responds to Glaser’s argument that Bauer failed to exhaust his
claims. Id. ¶¶ 5-7, 14.
As with his original complaint, Bauer again fails to allege that Glaser’s
treatment, i.e. forcing Bauer to pay for postage, is based on a suspect
classification or a fundamental right. Therefore, his amendment is futile as to
his Equal Protection claim and any claim concerning the payment of postage.
Further, to the extent Bauer filed his proposed amended complaint in order to
respond to Glaser’s motion for summary judgment, the court considered the
proposed amended complaint in denying Glaser’s motion and in concluding
that Bauer had presented sufficient evidence to show that a material question
of fact existed with regard to the exhaustion of remedies issue. Therefore,
Bauer’s motion to amend is denied.
Thus, it is ORDERED:
1. Glaser’s motion for summary judgment (Docket 16) is denied.
9

2. Bauer’s motion to amend (Docket 29) is denied.
Dated February 1, 2017.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

10