Bauer v. Glaser et al

Filing 9

ORDER Directing Service in Part and Dismissing Complaint in Part. Signed by U.S. District Judge Karen E. Schreier on 6/3/16. (SLW)

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

4:16-CV-04055-KES
Plaintiff,

vs.
JACOB GLASER, BRANDON KNUTSON,
DARIN YOUNG, and DAVID
GILBERTSON, C.J,

ORDER DIRECTING SERVICE
IN PART AND DISMISSING
COMPLAINT IN PART

Defendants.
Plaintiff, Jeremy Bauer, is an inmate at the South Dakota State
Penitentiary (SDSP) in Sioux Falls. He filed a pro se civil rights lawsuit
pursuant to 42 U.S.C. ' 1983. Docket 1. The court has now screened Bauer’s
complaint pursuant to 28 U.S.C. § 1915A. For the reasons stated below,
Bauer’s complaint is dismissed in part and survives screening in part.
FACTUAL BACKGROUND
According to Bauer’s complaint, on September 21, 2015, Bauer’s habeas
petition was dismissed in South Dakota circuit court. Docket 1 at 5. SDSP
received this order on September 23, 2015. Id. Jacob Glaser,1 the Unit
Coordinator in charge of delivering legal mail to inmates and assigning inmate

Bauer refers to a “Jacobs” several times in his complaint. The court believes
he is referring to Jacob Glaser and proceeds on this assumption.
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jobs, delivered the circuit court’s order to Bauer on September 26, 2015. Id. at
5-6.
In response, Bauer prepared and had notarized a motion for a certificate
of probable cause and a motion to appoint counsel. Id. at 6. On October 6,
2015, Bauer gave these documents to Glaser to send. Id. at 7. The next day,
Glaser called Bauer into his office and told him that in order to send his legal
documents, Bauer would have to sign a money transfer form to pay for the
postage. Id. Bauer alleges that Department of Corrections Policy states that
prisoners do not have to pay for postage on outgoing legal mail. Id. Glaser did
not deliver the documents to the mailroom until October 8, 2015. Id. at 8.
Bauer alleges that the motion he delivered to Glaser on October 6 was
not due under South Dakota state laws until October 14 at the earliest. Id. at
8-9. The South Dakota Supreme Court received Bauer’s motion on October 13,
2015. Id. at 9. In an order signed by Chief Justice David Gilbertson, the South
Dakota Supreme Court dismissed Bauer’s motion because it was filed twentytwo days after entry of the circuit court’s order. Id.
Bauer filed grievances complaining that Glaser delayed mailing his
motions. Id. at 10. After investigating, Brendan Knutson responded to Bauer’s
grievances, telling him that Glaser had called Bauer to receive his mail multiple
times before September 26, 2015. Id.
On November 16, 2015, Bauer delivered to Glaser a motion to reconsider,
an affidavit in support of his motion, and proof of service to send to the South
Dakota Supreme Court. Id. Glaser again required Bauer to pay for postage. Id.
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at 11. Glaser delivered these documents to the mail room on November 19,
2015. Id. On November 20, 2015, Glaser had Bauer sign another money
transfer form to pay postage to mail these documents. Id.
On November 24, 2015, the South Dakota Supreme Court received these
documents. Id. They were returned pursuant to SDCL 15-26A-91, which states
that “[a] petition for reinstatement of an appeal dismissed by the Supreme
Court may be served and filed within twenty days after entry of the order of
dismissal.” Docket 1 at 11.
On December 1, 2015, Daniel Ducret, another inmate at SDSP, told
Bauer that there was an announcement on November 30, 2015, over the PA
system calling Bauer to pick up his legal mail. Id. at 12; Docket 5 at 1. Bauer
was at work and could not hear the announcement. Docket 1 at 12. On
February 15, 2016, Bauer sent a letter to Warden Darin Young explaining
everything that had happened in connection with his legal mail. Id. Young did
not respond. Id.
On April 20, 2016, Bauer filed his complaint in federal court. Docket 1.
He claimed that defendants had violated his rights under the First and
Fourteenth Amendments, specifically his right of access to the courts, his right
to due process, and his right to equal protection. Id. at 4. Bauer requests as
relief that the court declare that Chief Justice Gilbertson, Glaser, Knutson, and
Young violated Bauer’s constitutional rights. Id. at 14. He also requests
$50,000 in compensatory damages and $100,000 in punitive damages. Id.

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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
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); Parker v. Porter, 221 F. App’x 481, 482
(8th Cir. 2007).
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.” Abdullah v. Minnesota, 261 F. App’x 926, 927 (8th Cir. 2008);
Beavers v. Lockhart, 755 F.2d 657, 663 (8th Cir. 1985).
Under 28 U.S.C. § 1915A, this court must screen prisoner claims and
determine whether they are (1) frivolous, malicious, or fail to state a claim on
which relief may be granted; or (2) seek monetary relief from a defendant who
is immune. See Onstad v. Wilkinson, 534 F. App’x 581, 582 (8th Cir. 2013).

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DISCUSSION
Bauer claims that Chief Justice Gilbertson, Knutson, Young, and Glaser
violated his right of access to the courts and his rights under the Due Process
and Equal Protection Clauses of the Fourteenth Amendment.
I.

Defendant Chief Justice Gilbertson Is Dismissed
Bauer claims that Chief Justice Gilbertson violated his constitutional

rights. A judge is generally immune from a suit for money damages. Mireles v.
Waco, 502 U.S. 9 (1991). This immunity can only be overcome in two
circumstances. “First, a judge is not immune from liability for nonjudicial
actions, i.e., actions not taken in the judge's judicial capacity. Second, a judge
is not immune for actions, though judicial in nature, taken in the complete
absence of all jurisdiction.” Id. at 11-12 (citations omitted).
To determine whether an act is “judicial,” the court considers “whether
the act is a function normally performed by a judge and whether the judge was
interacting with the complaining party in a judicial capacity.” Liles v. Reagan,
804 F.2d 493, 495 (8th Cir. 1986). “[T]he relevant inquiry is the ‘nature’ and
‘function’ of the act, not the ‘act itself.’ ” Mireles, 502 U.S. at 13 (quoting Stump
v. Sparkman, 435 U.S. 349, 362 (1978)). The court looks to “the particular act's
relation to a general function normally performed by a judge . . . .” Id.
Denying Bauer’s motion was a judicial action. Bauer argues that his
motion was timely and should not have been dismissed under South Dakota
law. Docket 1 at 4. Determining the timeliness of a motion and dismissing
motions are “judicial” acts. Bauer argues that his motion should not have been
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dismissed, but the fact that an action is improper or erroneous does not make
it “nonjudicial.” Mireles, 502 U.S. at 12-13; see also White v. Bloom, 621 F.2d
276, 279-80 (8th Cir. 1980) (judge was immune even though actions may have
been “taken in error, or arguendo may even have been done maliciously; but
they were nevertheless done within the judicial capacity”). Chief Justice
Gilbertson was also interacting with Bauer in a judicial capacity. Therefore, the
denial of Bauer’s motion was a judicial act.
Chief Justice Gilberston did not deny Bauer’s motion “in the complete
absence of all jurisdiction.” This absence has been described as “a probate
judge, with jurisdiction over only wills and estates, [trying] a criminal
case . . . .” Penn v. United States, 335 F.3d 786, 789 (8th Cir. 2003) (quoting
Stump v. Sparkman, 435 U.S. 349, 357 n. 7 (1978)). “[I]f a judge of a criminal
court should convict a defendant of a nonexistent crime,” however, this would
only be an act in excess of jurisdiction, and the judge is still immune. Id. Here,
Chief Justice Gilbertson clearly had jurisdiction to dismiss Bauer’s motion.
Chief Justice Gilbertson is immune from Bauer’s claim under § 1983.
Bauer fails to state a claim against Chief Justice Gilbertson even though Bauer
disagrees with his legal conclusion. See Birch v. Mazander, 678 F.2d 754, 756
(8th Cir. 1982) (holding that the possible commission of procedural errors was
insufficient to deprive a judge of immunity). Therefore, Bauer’s claim against
Chief Justice Gilbertson is dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii)
and 1915A(b)(1).

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II.

Defendants Knutson and Young Are Dismissed
Bauer claims that Knutson and Young violated his right of access to the

courts and his rights under the Due Process and Equal Protection Clauses.
Specifically, he alleges that Knutson investigated his grievance and improperly
found against Bauer and that Young failed to respond to Bauer’s complaint.
In Buckley v. Barlow, 997 F.2d 494 (8th Cir. 1993), Buckley, a prisoner,
alleged that the defendants violated his constitutional rights because they
“refused to pick up his completed grievance forms,” and supervisors
“condoned” this “by refusing to answer Buckley's letters or investigate his
grievances.” at 495. The Eighth Circuit Court of Appeals concluded that
Buckley failed to state a claim “because no constitutional right was violated by
the defendants' failure, if any, to process all of the grievances he submitted for
consideration.” Id. (citing Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991) (per
curiam) (federal grievance regulations providing for administrative remedy
procedure do not create liberty interest in access to that procedure)).
“[D]efendants’ failure to process any of Buckley's grievances, without more,”
was “not actionable under section 1983.” Id.
Similarly, in Moore v. Thurber, 105 F.3d 663 (8th Cir. 1997), the court
dismissed allegations that defendant jail officials continuously denied a
prisoner’s requests for grievance forms, that the jail director knew about this
interference and did nothing, and that the investigating officer covered up the
issue by “failing to investigate thoroughly.” at *1. The court affirmed the district

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court’s dismissal of these claims as frivolous. Id. (citing Buckley, 997 F.2d at
495).
The Eighth Circuit Court of Appeals has held that prisoners fail to state a
claim by alleging prison officials failed to process their grievances, see, e.g.,
Hodgson v. Fabian, 378 F. App’x 592, 594 (8th Cir. 2010); Day v. Corr. Med.
Servs., 281 F. App’x 624 (8th Cir. 2008), and that the failure to investigate
grievances does not rise to a constitutional violation. King v. Houston, 556 F.
App’x 561, 563 (8th Cir. 2014). Other district courts within the Eighth Circuit
have dismissed similar claims. E.g., Townsend v. Singleton, No. 4:12-CV-04072,
2013 WL 501441, at *3 (W.D. Ark. Jan. 3, 2013), report and recommendation
adopted, No. 12-CV-4072, 2013 WL 501112 (W.D. Ark. Feb. 11, 2013); Webb v.
Smartwood, No. 07-4017-CV-C-NKL, 2009 WL 2606237, at *5 (W.D. Mo. Aug.
21, 2009).
Bauer merely disagrees with the outcome of Knutson’s investigation.
Docket 1 at ¶ 22. Even if Knutson failed to investigate, however, he would not
be liable under § 1983. Responsibility to investigate the grievance alone is not a
sufficient basis for liability. King, 556 F. App’x at 563.
Also, Knutson’s investigation happened after the alleged constitutional
violation occurred, Docket 1 at ¶ 22, and Bauer sent his letter to Young on
February 15, 2016, which is also after the alleged violations took place. Id. at
¶ 31. Therefore, Knutson’s alleged failure to properly investigate his grievance
and Young’s alleged failure to take corrective action were not the proximate

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causes of Bauer’s alleged denial of access to the court. They occurred after the
alleged violation of Bauer’s rights.
As to Young specifically, a supervisor may be liable if his “corrective
inaction constitutes deliberate indifference toward the violation.” Boyd v. Knox,
47 F.3d 966, 968 (8th Cir. 1995) (citing Choate v. Lockhart, 7 F.3d 1370, 1376
(8th Cir. 1993)). This requires that the supervisor “ ‘know about the conduct
and facilitate it, approve it, condone it, or turn a blind eye for fear of what [he
or she] might see.’ ” Id. (quoting Ripson v. Alles, 21 F.3d 805, 809 (8th Cir.
1994)). Though Bauer uses the term “blind eye,” he does not allege any facts
that show defendants were deliberately indifferent. Bauer fails to state a claim
against Knutson and Young, and these claims are dismissed pursuant to
28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
III.

Claims Against Glaser
A.

Access to Courts

Bauer claims that Glaser violated his right of access to the courts.
“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). “To state a claim . . . inmates must
assert that they suffered an actual injury to pending or contemplated legal
claims.” Id. (citing Casey, 518 U.S. at 351). In either a claim that the prison
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library was inadequate or that prisoners were not provided with enough
postage, the harm that must be shown is “a lost, rejected, or impeded legal
claim.” Id.
Bauer alleges that he gave his legal mail to Glaser on October 6, 2015,
and that Glaser did not deliver the mail to the prison mail room until October
8, 2015. Docket 1 at 7-8. He also alleges that his motion was denied because
it was two days late. Id. at 9. Therefore, Glaser’s delay caused his motion to be
dismissed. This same thing happened again with his motion to reconsider. Id.
at 11.
In upholding dismissals of access to courts claims, the Eighth Circuit
has implied that claims such as Bauer’s should not be dismissed. In Glick v.
Lockhart, 769 F.2d 471 (8th Cir. 1985), a prisoner attempted to send his legal
mail at state expense. At first the prison refused, but an assistant warden sent
the legal mail four days later. Id. at 472. The Eighth Circuit Court of Appeals
found this delay “constitutionally insignificant” because it did not cause
plaintiff to miss a court deadline. Id. In Moore v. Rowley, 126 F. App’x 759 (8th
Cir. 2005), a prisoner sued prison officials because they would not send his
sealed bankruptcy petition. The Eighth Circuit Court of Appeals upheld the
grant of summary judgment in favor of defendant Rowley “because the record
demonstrates that Rowley did not delay or refuse outright to send his
petition.” Id. at 761.

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Here, Bauer alleges that Glaser delayed sending his motion. He also
alleges that this delay was the reason his motion was dismissed. Therefore, he
states a claim of denial of access to the courts.
To the 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. A prison's policy of refusing to pay postage for legal mail when
an inmate simultaneously pays his own postage for personal letters does not
unreasonably restrict an inmate's access to the courts. Glick, 769 F.2d at 472.
B.

Due Process

Bauer claims that Glaser violated his rights under the Due Process
Clause. His complaint, however, does not explain how these rights were
violated or state facts that would support a claim of a due process violation.
Therefore, Bauer fails to state a claim under the Due Process Clause, and his
claim is dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
C.

Equal Protection

Bauer claims that Glaser violated his rights under the Equal Protection
Clause. “The heart of an equal protection claim is that similarly situated
classes of inmates are treated differently, and that this difference in treatment
bears no rational relation to any legitimate penal interest.” Weiler v. Purkett,
137 F.3d 1047, 1051 (8th Cir. 1998) (citing Timm v. Gunter, 917 F.2d 1093,
1103 (8th Cir. 1990)). To establish “an equal protection claim, a prisoner must
show that he is treated differently from similarly-situated inmates and that the
different treatment is based upon either a suspect classification or a
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‘fundamental right.’ ” Patel v. U.S. Bureau of Prisons, 515 F.3d 807, 815-16
(8th Cir. 2008) (quoting Weems v. Little Rock Police Dep't, 453 F.3d 1010
(8th Cir. 2006)).
Bauer claims that Glaser treated him differently from other inmates
when he forced Bauer to pay for postage to mail his legal documents. Docket 1
at 7. He does not, however, allege that this treatment is based on a suspect
classification or a fundamental right. Therefore, he fails to state a claim under
the Equal Protection Clause, and his claim is dismissed pursuant to 28 U.S.C.
§§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
Therefore, it is ORDERED
1. Bauer’s claims under the Due Process and Equal Protection Clauses
of the Fourteenth Amendment are dismissed for failure to state a
claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
2. Chief Justice Gilbertson, Knutson, and Young are dismissed as
defendants.
3. Bauer’s access to courts claim survives screening under 28 U.S.C.
§ 1915A.
4. The Clerk shall send blank summons forms to Bauer so he may
cause the summons and complaint to be served upon the defendant.
5. The United States Marshal shall serve a copy of the complaint
(Docket 1), Summons, and this Order upon defendants as directed by
Bauer. All costs of service shall be advanced by the United States.

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6. Defendant will serve and file an answer or responsive pleading to the
remaining claims in the complaint on or before 21 days following the
date of service.
7. Bauer will serve upon defendant, or, if appearance has been entered
by counsel, upon his counsel, a copy of every further pleading or
other document submitted for consideration by the court. He will
include with the original paper to be filed with the clerk of court a
certificate stating the date and that a true and correct copy of any
document was mailed to defendant or their counsel.
8. Bauer will keep the court informed of his current address at all
times. All parties are bound by the Federal Rules of Civil Procedure
and by the court’s Local Rules while this case is pending.
Dated June 3, 2016.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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