Bauer v. Glaser et al

Filing 60

ORDER denying as moot 40 Motion for Summary Judgment; granting 47 Motion for Summary Judgment; denying 56 Motion to Amend/Correct. Signed by U.S. District Judge Karen E. Schreier on 3/29/2018. (JLS)

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

4:16-CV-04055-KES
Plaintiff,

vs.
JACOB GLASER,

ORDER GRANTING SUMMARY
JUDGMENT AND DENYING MOTION
TO AMEND

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. 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 judgment.
FACTUAL BACKGROUND 1
On May 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

The court draws the facts from the pleadings, the parties’ statements of
undisputed material facts, the proposed-amended complaint, and other
documents submitted as part of the record. Where the facts are disputed, both
parties’ averments are included.
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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).
On May 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).
The 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.
After receiving the circuit court’s denial of his habeas petition, Bauer
prepared a motion for certificate of probable cause and a motion to appoint
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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.
Also on 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. 2 Docket 42 ¶ 7; Docket 49 ¶ 14. Bauer
Glaser notes that under South Dakota Department of Corrections (DOC)
Inmate Correspondence Policy 1.5.D.3(IV)(6)(F) (“DOC Mail Policy”), each
inmate is allowed to send up to five letters per week with state-paid postage for
a maximum postage total of $10 per month. Docket 49 ¶ 7; Docket 49-8 (DOC
Mail Policy). According to affidavits submitted, once an inmate’s monthly
postage for legal mail exceeds the $10 limit, SDSP mailroom staff return the
legal mail to the prisoner’s unit coordinator (UC) with a letter explaining the
amount of postage due. Docket 52 ¶ 8. The prisoner’s UC then approaches the
prisoner to see if the prisoner is willing to execute a money transfer order to
pay for the remaining postage. Docket 50 ¶¶ 8-9. If the prisoner signs the
money transfer order, the UC also signs the form, notes the inmate’s current
account balance on the form, and returns both the legal mail and the form to
the mailroom for mailing. Id. ¶ 9. Once the mailroom staff receive the signed
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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.
Bauer 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.
According 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

money transfer order, the legal mail is logged in the prison’s inmate mail log,
postage is put on the legal mail, and the items are mailed. Docket 52 ¶ 8.
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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).
Notwithstanding 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), 3
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

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In relevant part, SDCL § 15-6-6(a) provides:
In computing any period of time prescribed or allowed by this
chapter, by order of court, or by any applicable statute, the day of
the act, event, or default from which the designated period of time
begins to run shall not be included. The last day of the period so
computed shall be included, unless it is a Saturday, a Sunday or a
legal holiday or, when the act to be done is the filing of a paper in
court, a day on which weather or other conditions have made the
office of the clerk of court inaccessible, in which event the period
runs until the end of the next day which is not one of the
aforementioned days. . . . As used in this rule, “legal holiday”
includes those holidays listed in § 1-5-1.
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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. 4 Id.
After 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 ¶ 21.
According 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

The South Dakota Supreme Court’s order does not explain why it “counted”
Monday, October 12, 2015, in calculating the due date for Bauer’s motion for a
certificate of probable cause. Given this anomaly, United States Magistrate
Judge Veronica Duffy—in Bauer’s § 2254 habeas proceeding—found that
Bauer established “cause” for the procedural default of his state habeas claims.
See Bauer v. Dooley, 5:15-CV-5089-JLV, Docket 11 at 25, (D.S.D. August 24,
2016).
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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.
Glaser 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).
On 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 ¶ 19.

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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 first proposed
amended complaint attempted to cure the deficiencies of his Equal Protection
claim and responded to Glaser’s motion for summary judgment. Id.
On 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.
On 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
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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.
LEGAL STANDARDS
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). 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).
Prisoners 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.,
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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).
“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.
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).
DISCUSSION
I.

Motions for Summary Judgment
Both Bauer and Glaser move for summary judgment. Dockets 40 and 47.

Because the court has stayed discovery in this matter until the issue of
qualified immunity is determined, and because Glaser has moved for summary
judgment, in part, on the basis of qualified immunity, the court must first
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determine if Glaser is entitled to qualified immunity. If the court determines
that Glaser is not entitled to qualified immunity, the court will address the
substance of Bauer’s motion for summary judgment. Before determining
whether Glaser is entitled to qualified immunity, however, the court will
address Bauer’s official capacity claim against Glaser.
A.

Official Capacity Claim

Bauer sued Glaser in his official capacity. Docket 1 at 2. As the Supreme
Court has stated, “a suit against a state official in his or her official capacity is
not a suit against the official but rather is a suit against the official's office.”
Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) (citing Brandon v. Holt,
469 U.S. 464, 471 (1985)). Thus, it is a suit against the state itself. Id. While
“[§] 1983 provides a federal forum to remedy many deprivations of civil liberties
. . . it does not provide a federal forum for litigants who seek a remedy against
a State for alleged deprivations of civil liberties.” Id. at 66. The Eleventh
Amendment generally acts as a bar to suits against a state for money damages
unless the state has waived its sovereign immunity. Id.
Here, as part of Bauer’s requested remedy, he seeks to recover money
damages. Docket 1 at 14. Consequently, because Bauer sued Glaser in his
official capacity, Bauer has asserted a claim for money damages against the
state of South Dakota. The state of South Dakota has not waived its sovereign
immunity. Thus, the court finds that Glaser is protected by sovereign immunity
and is entitled to judgment as a matter of law on Bauer’s official capacity claim.

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B.

Individual Capacity Claims

Glaser contends that Bauer is barred from proceeding on his § 1983
claims because a judgment in Bauer’s favor here would necessarily imply the
invalidity of his underlying state court conviction. Thus, Glaser argues that
Bauer’s access to the courts claims are barred under the doctrine announced
in Heck v. Humphrey, 512 U.S. 477 (1994). Glaser further argues that even if
Bauer’s claims are not barred by Heck, he is entitled to qualified immunity
from Bauer’s individual capacity claim.
1. Whether Bauer’s Access to the Court Claims are Heck Barred
In Heck v. Humphrey, the Supreme Court held:
[I]n order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence invalid,
a § 1983 plaintiff must prove that the conviction or sentence has
been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court's issuance
of a writ of habeas corpus, 28 U.S.C. § 2254.
512 U.S. at 486-87. The Heck Court further observed that “[a] claim for
damages bearing that relationship to a conviction or sentence that has not
been so invalidated is not cognizable under § 1983.” Id. at 487 (emphasis in
original). Thus, because Bauer’s § 1983 claim here seeks damages from Glaser,
the court must consider whether judgment in Bauer’s favor “would necessarily
imply the invalidity of his conviction or sentence[.]” Id. at 487.
Glaser argues that Bauer’s § 1983 claim is barred by Heck because to
rule in Bauer’s favor would require the court to imply that Bauer’s state court

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conviction was invalid. Docket 48 at 8-9. Bauer did not respond to Glaser’s
argument that his access to the court claims are barred under Heck. Instead,
Bauer moved to amend his complaint without addressing the applicability of
Heck. See Docket 56.
The court agrees that Bauer’s access to the court claims are Heck barred.
As is clear from the record, Bauer’s underlying criminal conviction has not
been reversed on appeal or declared invalid by a state court. See Docket 49-6
(state circuit court order denying Bauer’s habeas motion); Docket 49-7 (South
Dakota Supreme Court order dismissing Bauer’s motion seeking a certificate of
probable cause). Nor has Bauer’s conviction been “called into question by a
federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254.” Heck,
512 U.S. at 487. In fact, when Bauer sought habeas relief through the federal
courts under 28 U.S.C. § 2254, his claims were thoroughly analyzed by
Magistrate Judge Duffy, who recommended dismissal of Bauer’s habeas
petition. See Bauer v. Dooley, 5:15-CV-5089-JLV, Docket 11 (D.S.D. August 24,
2016). The district court adopted the Magistrate Judge Duffy’s report and
recommendation and dismissed Bauer’s habeas petition with prejudice. Id.,
Docket 23, (D.S.D. March 6, 2017). Thus, because no court has overturned
Bauer’s conviction, declared it invalid, or called it into question by granting a
writ of habeas corpus under 28 U.S.C. § 2254, Bauer cannot overcome Heck’s
favorable termination requirement. See Entzi v. Redmann, 485 F.3d 998, 1003
(8th Cir. 2007) (affirming the district court’s grant of summary judgment
because Heck’s favorable termination rule barred Entzi’s suit).
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Further, not only has Bauer failed to show favorable termination of his
underlying criminal conviction, but he has also failed to show how granting his
requested relief would not necessarily imply that his underlying conviction is
invalid. Although the Eighth Circuit has yet to address a case dealing with
Heck in the context of an access to the courts claim, other circuits that have
addressed this issue have concluded that Heck bars the maintenance of § 1983
actions where awarding an inmate requested damages would imply that the
inmate’s underlying conviction is invalid. See Coulston v. Superintendent
Houtzdale SCI, 651 Fed. Appx. 139, 142 (3d Cir. 2016) (concluding that an
inmate’s § 1983 claim seeking money damages for lost opportunities to file
habeas petitions was barred by Heck because the action implied the invalidity
of his underlying convictions); Griffin v. Balt. Police Dept., 804 F.3d 692, 695-96
(4th Cir. 2015) (finding that § 1983 claim predicated on alleged Brady
violations would, if proven, “necessarily undermine the validity of Griffin’s prior
convictions” and thus fell “within the core of the Heck bar”); Burd v. Sessler,
702, F.3d 429, 434-35 (7th Cir. 2012) (concluding that Heck barred a
prisoner’s § 1983 access to the courts claim seeking money damages based on
prison officials’ denial of access to legal resources to challenge his guilty plea).
Thus, because Bauer cannot show favorable termination of his underlying
criminal conviction and because ruling for Bauer on his access to the courts
claims would necessarily imply that his underlying state criminal conviction is
invalid, Bauer’s present § 1983 claim seeking damages from Glaser is not
cognizable. See Heck, 512 U.S. at 486-87.
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2.

Qualified Immunity

42 U.S.C. § 1983 recognizes a cause of action against any “person who,
under the color of any statute, ordinance, regulation, custom, or usage, of any
state” causes the deprivation of a right protected by federal law or the United
States Constitution. The doctrine of qualified immunity, however, generally
shields “ ‘government officials performing discretionary functions . . . from
liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person
would have known.’ ” Smith v. City of Minneapolis, 754 F.3d 541, 545 (8th Cir.
2014) (alteration omitted) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). Qualified immunity protects “all but the plainly incompetent or those
who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).
Qualified immunity is an immunity from suit rather than just a defense
from liability, and thus the defense is lost if a case is erroneously permitted to
go to trial. Pearson v. Callahan, 555 U.S. 223, 231 (2009) (citing Mitchell v.
Forsyth, 472 U.S. 511, 526 (1985)). “For this reason, qualified immunity cases
are somewhat unique in that ‘the court should [not] deny summary judgment
any time a material issue of fact remains on the [constitutional violation] claim
[because to do so] could undermine the goal of qualified immunity.’ ” Jones v.
McNeese, 675 F.3d 1158, 1161 (8th Cir. 2012) (alterations in original) (quoting
Brockinton v. City of Sherwood, 503 F.3d 667, 671 (8th Cir. 2007)). Further,
because qualified immunity is an immunity from suit, the Supreme Court has

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noted that immunity questions must be resolved at the earliest possible stage
of litigation, preferably prior to discovery. Pearson, 555 U.S. at 231-32.
To overcome qualified immunity at the summary judgment stage, a
plaintiff must show: “(1) the facts, viewed in the light most favorable to the
plaintiff, demonstrate the deprivation of a constitutional or statutory right; and
(2) the right was clearly established at the time of the deprivation.” Howard v.
Kan. City Police Dep’t, 570 F.3d 984, 988 (8th Cir. 2009). Courts have
discretion to decide which of these two prongs to address first, Pearson, 555
U.S. at 236, but they must thoroughly analyze both prongs of the qualified
immunity doctrine. Jones, 675 F.3d at 1162 (remanding a summary judgment
order “for a more detailed qualified immunity analysis”). In order to deny a
government official qualified immunity, a court must resolve both questions in
the plaintiff's favor. Hawkins v. Gage Cty., 759 F.3d 951, 956 (8th Cir. 2014).
a. Whether Glaser Deprived Bauer of a Constitutional Right
“Inmates undeniably enjoy a constitutional right of access to the courts
and the legal system.” Myers v. Hundley, 101 F.3d 542, 544 (8th Cir. 1996)
(citing Lewis v. Casey, 518 U.S. 343, 351 (1996); Bounds v. Smith, 430 U.S.
817, 821 (1977)). To protect that right, prisons must provide inmates with the
ability to mail their complaints and related legal correspondence. Id. (citing
Casey, 518 U.S. at 351; Bounds, 430 U.S. at 824–28). Inmates do not,
however, have a right to unlimited stamps for their legal mail. Id. Instead, the
duty on prisons to aid inmates in sending legal mail and related legal

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correspondences, “is bounded by the inmate’s right of meaningful access to the
courts.” Id. (citing Casey, 518 U.S. at 351; Bounds, 430 U.S. at 828).
In White v. Kautzky, 494 F.3d 677 (8th Cir. 2007), the Eighth Circuit
adopted the following standard for claims by inmates alleging a denial of access
to the courts:
To prove a violation of the right of meaningful access to the courts,
a prisoner must establish the state has not provided an opportunity
to litigate a claim challenging the prisoner's sentence or conditions
of confinement in a court of law, which resulted in actual injury,
that is, the hindrance of a nonfrivolous and arguably meritorious
underlying legal claim.
Id. at 680 (citing Christopher v. Harbury, 536 U.S. 403, 415 (2002); Casey, 518
U.S. at 351). In order to determine whether Bauer was denied access to the
courts, this court must first look at whether Glaser’s alleged wrongful actions
caused Bauer an actual injury. Id. (“Because the actual injury requirement
concerns the prisoner's standing to bring a claim, and thus our jurisdiction,
and because we avoid unnecessarily deciding constitutional issues, we will
first consider whether White suffered any actual injury.”) For Bauer to prove
he suffered an actual injury, he “must ‘demonstrate that a nonfrivolous legal
claim had been frustrated or was being impeded.’ ” Id. (quoting Casey, 518
U.S. at 353).
As noted above, 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. In support of his claims,

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Bauer argues that but for Glaser requiring Bauer to execute a money transfer
order to send his legal mail, both of his motions would have been timely
received by the South Dakota Supreme Court. See Docket 41 at 3-5. Bauer
further argues that even after he executed his money transfer order for each
set of mailing that Glaser waited an additional day or two to give the mail to
the mailroom for processing. See id.
Glaser responds to Bauer’s arguments by arguing that Bauer cannot
demonstrate that he was pursuing a nonfrivolous legal claim. See Docket 48 at
4. That Bauer’s underlying habeas action was frivolous, according to Glaser, is
evident from a reading of the thorough analyses provided by the state circuit
court judge and by Magistrate Judge Duffy when reviewing Bauer’s habeas
actions. Id. at 5 (citing Docket 49-6; Bauer v. Dooley, 5:15-CV-5089-JLV,
Docket 11, (D.S.D. August 24, 2016)). Glaser also argues that Bauer cannot
show that Glaser’s actions frustrated or impeded his access to the courts. Id.
at 6. In support of this point, Glaser notes that under SDCL §§ 21-27-18.1
and 15-6-6(a), Bauer’s motion for a certificate of probable cause was timely
received. Id. at 7. Thus, Glaser contends that he “cannot be held liable for the
South Dakota Supreme Court’s rejection of [Bauer’s] motion.” Id. Regarding
Bauer’s motion for reconsideration, Glaser argues that even using the more
favorable computation method proposed by Bauer, his motion for
reconsideration was due by November 12, 2015, at the latest. Id. at 7-8.
Bauer, however, did not give his motion for reconsideration to Glaser until
November 16, 2015, and thus Glaser further argues that he cannot be found
18

to have frustrated or impeded Bauer’s attempt to file his motion for
reconsideration. Id. at 8.
At this stage in the qualified immunity analysis, the court must view the
facts in the light most favorable to Bauer. See Howard, 570 F.3d at 988. And
viewing the facts in the light most favorable to Bauer, the court concludes that
Bauer cannot demonstrate that he pursued a nonfrivolous legal claim that
was frustrated or impeded by Glaser’s actions. Both the state circuit court and
the federal district court found against Bauer when he sought habeas relief.
Thus, because Bauer cannot satisfy the underlying showing necessary to
support his access to the courts claims, the court finds that he has failed to
demonstrate that he was deprived of a constitutional right for purposes of the
qualified immunity analysis.
b. Whether Bauer’s Constitutional Right was Clearly
Established
Even if Bauer was able to show that he was pursuing a constitutional
right, the second prong of the qualified immunity doctrine—whether the right
was “clearly established”—shields Glaser from personal liability. A right is
“clearly established” if it “ ‘is sufficiently clear that every reasonable official
would have understood that what he is doing violates that right.’ ” Mullenix v.
Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (quoting Reichle v. Howards, 566
U.S. 658, 664 (2012)). A case directly on point is not required, “but existing
precedent must have placed the statutory or constitutional question beyond
debate.” Id. (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). Rather than

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defining the law generally, courts must ask “whether the violative nature of
particular conduct is clearly established.” Ashcroft, 563 U.S. at 742. The
inquiry of whether a constitutional right was clearly established at the time of a
defendant’s alleged actions “ ‘must be undertaken in light of the specific
context of the case, not as a broad general proposition.’ ” Mullenix, 136 S. Ct. at
308 (quoting Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam)).
Here Bauer argues that “[i]f not for the imposition of the postage charges
for Bauer’s legal mail, the mail would have been timely provided to the SDSP
Mailroom for posting.” Docket 41 at 4. In support of this point, Bauer cites the
section of the DOC’s Mail Policy that 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.
Bauer thus contends that because Glaser required Bauer to execute money
transfer orders prior to the processing of his legal mail, Glaser violated Bauer’s
clearly established constitutional right of access to the courts. See Docket 41 at
3-5.
The Eighth Circuit has held that “[i]nmates do not have a right . . . to
unlimited stamp allowances for legal mail.” Myers, 101 F.3d at 544; see also
Holloway v. Magness, 666 F.3d 1076, 1080 (8th Cir. 2012) (“The Constitution
does not prohibit charging prisoners for essential prison services, at least in
the absence of a showing that the result is a severe deprivation of a
fundamental right.”). And, as this court noted in its screening order, “[t]o the
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extent that Bauer claims he was denied access to the courts because the prison
forced him to pay postage for his legal mail, he fails to state a claim.” Docket 9
at 11. Bauer cannot point to a constitutional right that requires that he be
provided with unlimited postage to send his legal mail. Thus, because Bauer
has not demonstrated he has a constitutional right to unlimited postage for his
legal mail, the court concludes that Bauer has failed to show Glaser violated
Bauer’s “clearly established” constitutional rights.
II.

Bauer’s Motion to Amend
Bauer’s present motion to amend seeks to restate count one of his

complaint with particularity and to add a First Amendment retaliation claim
against Glaser. Docket 56. Having reviewed Bauer’s motion to amend, the court
denies Bauer’s motion because the proposed amendments are futile. First,
Bauer’s attempt to restate former count one is futile because there is no need
for Bauer to restate claims that are already plausibly pleaded. See Docket 9 at
9-11 (analyzing Bauer’s access to the courts claims and concluding that
Bauer’s complaint stated a plausible claim of an alleged denial of access to the
courts). Second, as is described in greater detail below, after reviewing Bauer’s
proposed retaliation claim, the court concludes that Bauer’s proposed
retaliation claim is also futile because Bauer has failed to demonstrate that
Glaser committed an adverse action that would “chill” a reasonable person
from continuing to file grievances.
“The right to be free from retaliation for availing one's self of the prison
grievance process has been clearly established in [the Eighth Circuit] for more
21

than twenty years.” Santiago v. Blair, 707 F.3d 984, 991 (8th Cir. 2013) (citing
Nelson v. Shuffman, 603 F.3d 439, 449–50 (8th Cir. 2010)). In order for Bauer
to allege a First Amendment retaliation claim regarding the SDSP’s grievance
system, he must show that “ ‘(1) he engaged in a protected activity, (2) the
government official took adverse action against him that would chill a person of
ordinary firmness from continuing in the activity, and (3) the adverse action
was motivated at least in part by the exercise of the protected activity.’ ”
Spencer v. Jackson Cty. Mo., 738 F.3d 907, 911 (8th Cir. 2013) (quoting Revels
v. Vincenz, 382 F.3d 870, 876 (8th Cir. 2004)). The retaliatory conduct alleged
by Bauer does not itself need to be a constitutional violation because “the
violation is acting in retaliation for ‘the exercise of a constitutionally protected
right.’ ” Id. (quoting Cody v. Weber, 256 F.3d 764, 771 (8th Cir. 2001)).
Here, Bauer’s proposed retaliation claim alleges that Glaser acted
“intentionally, with malice and forethought, taking retaliatory action against
[Bauer] through machination, with the intent to thwart [Bauer’s] access to seek
administrative remedy for his grievances in an effort to deprive, and continue to
deprive, [Bauer] of his right to petition.” Docket 56-1 ¶ 49. As it relates to the
first prong, construing Bauer’s allegations liberally, Bauer alleges that Glaser
“tossed” Bauer’s Request for Administrative Remedy #11881 (AR #11881) in
order to hide the request from Unit Manager Bieber because AR #11881
criticized Glaser’s acts of delaying delivery of Bauer’s legal mail to him. 5

Although it is not clear from the record whether anyone at the SDSP
responded to AR #11881, because the court is liberally construing Bauer’s
5

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Id. ¶ 37. Bauer also alleges that for this same reason, Glaser intentionally
failed to respond to Bauer’s November 11, 2015 kite form that requested an
update regarding the status of AR #11881. 6 Id. Thus, taking Bauer’s allegations
as true, the allegations clearly satisfy the first prong of a First Amendment
retaliation claim because “[t]he filing of a prison grievance, like the filing of an
inmate lawsuit, is protected First Amendment activity.” Lewis v. Jacks, 486
F.3d 1025, 1029 (8th Cir. 2007).
For Bauer to satisfy the second prong of a First Amendment retaliation
claim, he must demonstrate not only that Glaser took an adverse action toward
him but also that Glaser’s adverse action “ ‘would chill a person of ordinary
firmness from continuing in the activity[.]’ ” Spencer, 738 F.3d at 911 (quoting
Revels, 382 F.3d at 876); see also Lewis, 486 F.3d at 1029 (holding in a First
Amendment retaliation claim that the record contained insufficient evidence
that increasing the prisoner's work load would chill a prisoner of ordinary
firmness from using the prison grievance process). “ ‘The ordinary-firmness test
is well established in the case law, and is designed to weed out trivial matters
from those deserving the time of the courts as real and substantial violations of
the First Amendment.’ ” Santiago, 707 F.3d at 992 (quoting Garcia v. City of
Trenton, 348 F.3d 726, 728 (8th Cir. 2003)). This is an objective test that looks

proposed amended complaint, the court will assume that AR #11881 was never
responded to by staff at the SDSP.
According to Bauer’s proposed amended complaint, a kite form is an internal
prison form on 5.5 x 8.5 sized paper used for internal correspondences
between inmates and SDSP staff. Docket 56-1 ¶ 37.
6

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at whether a reasonable prisoner’s actions would be chilled by an official’s
alleged adverse actions. See id. (citing Garcia, 348 F.3d at 729).
Here, Bauer has failed to allege facts to show that a reasonable prisoner
of ordinary firmness would have been “chilled” from using the grievance
procedure if that prisoner were in Bauer’s position. 7 Id. Although the ordinary
firmness determination is normally a question for a jury, see id., it is clear here
Bauer has failed to show that a reasonable person would have been “chilled” by
Glaser’s actions. In fact, as demonstrated by Bauer’s proposed amended
complaint, it is clear that Bauer himself was not “chilled” by Glaser’s actions
because after getting no response to AR #11881, Bauer filed Informal
Resolution Request #12350 (IRR #12350) that again alleged that Glaser had
delayed Bauer’s legal mail to the South Dakota Supreme Court. Compare
Docket 56-7 and 56-8 (stating the facts underlying AR #11881, namely that
Glaser delayed Bauer’s legal mail) with Docket 56-14 at 2 (reciting the facts
related to IRR #12350, which included allegations that Glaser delayed Bauer’s
legal mail). Thus, even assuming that Glaser’s actions in the processing of
either AR #11881 or IRR #12350 constituted an “adverse action,” 8 it is clear
For purposes of this analysis, the court assumes that Bauer’s allegations that
Glaser tossed AR #11881 and failed to respond to Bauer’s November 11, 2015
kite, which requested a status update on AR #11881, Docket 56-1 ¶ 38,
sufficiently alleges that Glaser took an adverse action toward Bauer.
7

In assuming that Glaser committed an adverse action toward Bauer, the
court notes that under the DOC policy attached to Bauer’s proposed amended
complaint, Glaser would have been precluded from investigating or responding
to Bauer’s complaints about Glaser. See Docket 56-16 at 2 (copy of DOC
Administrative Remedy for Inmates Policy 1.3.E.2(IV)(1)(E)). Thus, it is highly
unlikely that Glaser was actually involved in investigating or responding to
8

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from Bauer’s proposed amended complaint and the related attachments that
Bauer himself was not “chilled” by Glaser’s acts. Thus, because Bauer has
failed to demonstrate that a reasonable prisoner of ordinary firmness would
have been “chilled” by Glaser’s actions, Bauer’s motion to amend his complaint
to add a First Amendment retaliation claim is denied because the claim is
futile. 9
CONCLUSION
To the extent Bauer seeks to hold Glaser liable in his official capacity for
money damages, Glaser is protected by sovereign immunity and is entitled to
judgment as a matter of law on that claim. The court finds that Bauer’s § 1983
claim seeking damages from Glaser in his individual capacity is not cognizable
under Heck, 512 U.S. at 486-87, because Bauer cannot show favorable
termination of his underlying state court criminal conviction and because
ruling for Bauer on his access to the courts claims would necessarily imply
that his underlying state criminal conviction is invalid. Further, even if Bauer’s
individual capacity claim against Glaser is not Heck barred, the court
concludes that Glaser is entitled to qualified immunity on that claim. Thus, the

Bauer’s complaints. The court also notes that Bauer’s proposed amended
complaint fails to allege that Glaser either personally processed or was involved
in responding to IRR #12350. See Docket 56-1 ¶¶ 38-46.
Given the court’s conclusion that Bauer’s proposed amended complaint is
futile because it fails to allege facts sufficient to support the second element of
a First Amendment retaliation claim, the court will not address whether Bauer
stated sufficient facts to support the third element of a First Amendment
retaliation claim—whether the alleged adverse action was motivated in part by
the exercise of a protected activity.
9

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court grants Glaser’s motion for summary judgment and denies Bauer’s motion
for summary judgment as moot.
The court also denies Bauer’s motion to amend because the amendments
are futile. First, Bauer does not need to restate claims that are already
plausibly pleaded. And second, Bauer’s proposed First Amendment retaliation
claim is futile because Bauer has failed to demonstrate that Glaser committed
an adverse action that would “chill” a reasonable person from continuing to file
grievances. 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 when granting Glaser’s motion for
summary judgment.
Thus, it is ORDERED:
1. Glaser’s motion for summary judgment (Docket 47) is granted.
2. Bauer’s motion for summary judgment (Docket 40) is denied as moot.
3. Bauer’s motion to amend (Docket 56) is denied.
Dated March 29, 2018.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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