Bauer v. Glaser

JEREMY BAUER, Plaintiff, v. JACOB GLASER, Defendant.

4:16-CV-04055-KES

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION

March 29, 2018

ORDER GRANTING SUMMARY JUDGMENT AND DENYING MOTION TO AMEND

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 BACKGROUND¹

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 SouthDakota 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 appointcounsel 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. Bauersigned 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 afterentry 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 fromcomputation 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 DakotaAttorney 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.

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...