Schurman v. Payer et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
STEPHANIE SCHURMAN,
Plaintiff,
vs.
MARK PAYER, JIM VHLAHAKIS,
YANKTON COUNTY JAIL,
Defendants.
4:21-CV-04156-KES
ORDER AS TO MOTIONS AT
DOCKET NOS. 22, 25, 28 & 35
INTRODUCTION
This matter is before the court on the pro se complaint of plaintiff
Stephanie Schurman alleging claims under 42 U.S.C. § 1983. 	See Docket
No. 1. 	Now pending are two motions by Ms. Schurman (Docket Nos. 22 and
25) and two motions by defendants (Docket Nos. 28 and 35), all of which have
been referred to this magistrate judge for decision pursuant to 28 U.S.C.
§ 636(b)(1)(A) and Local Rule 57.11.
FACTS
A. 	Background and Claims
Ms. Schurman became involved in the state court criminal system when
she was convicted of possessing methamphetamine. 	She was sentenced on
June 11, 2019. 	She was given three years’ incarceration, but that sentence
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was suspended and she was placed on probation. 	After violating the terms of
probation twice, the state circuit court revoked Ms. Schurman’s probation and
sentenced her to five years’ imprisonment with two years suspended on
May 28, 2020.
Ms. Schurman filed an untimely direct appeal to the South Dakota
Supreme Court, which rejected the appeal because it was untimely. 	She did
not file a habeas petition in state court.
She filed a federal habeas petition pursuant to 28 U.S.C. § 2254 on
September 28, 2020. 	See Schurman v. Warden, Pierre Women’s Prison, 4:20-
CV-04140-KES (D.S.D. Sept. 28, 2020). 	Because state prisoners must first
present their habeas claims in state court before presenting those claims in
federal court, this magistrate judge recommended Ms. Schurman’s petition be
dismissed without prejudice so that she could exhaust her remedies in state
court by presenting her claims in state court first. 	Id. at Docket No. 13. 	The
district court adopted that recommendation and dismissed Ms. Schurman’s
petition without prejudice. 	Id. at Docket Nos. 16 and 17.
While Ms. Schurman’s first federal habeas petition was pending, she was
paroled from prison on October 20, 2020. 	On March 21, 2021, she was
indicted by a state court grand jury and charged with possessing
methamphetamine on March 8, 2021. 	On April 7, 2021, she was released from
pretrial detention on her new charges, but continued to be detained on a parole
hold from her 2019 conviction. 	Ms. Schurman filed her second § 2254 petition
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with this court on April 9, 2021. 	Schurman v. Payer, 4:21-CV-04059-KES
(D.S.D.).
Although this court explained to Ms. Schurman in detail in her first
habeas petition the requirement that she exhaust her claims in state court first
before presenting them in federal court, Ms. Schurman again failed to exhaust
her claims in state court before filing her second federal habeas petition. 	Id. at
Docket No. 7.
The court again explained that Ms. Schurman needed to exhaust her
claims by presenting them in state court first before the federal courts could
consider those claims on the merits. 	Id. at Docket No. 15. 	The court noted
that Ms. Schurman had until May 28, 2022, to file a state habeas petition so
that she could exhaust her claims in state court. 	Id. at p. 7. 	At the time this
court advised Ms. Schurman (for the second time) of her responsibility to
exhaust in state court, she still had 11 months in which to do so. 	Id.
This magistrate judge again recommended Ms. Schurman’s second
§ 2254 petition be dismissed without prejudice in order that she could present
her claims in state court. 	Id. 	The district court agreed and again dismissed
Ms. Schurman’s second federal habeas petition. 	Id. at Docket Nos. 22 & 23.
Ms. Schurman filed late objections to this court’s report and
recommendation. 	Id. at Docket No. 24. 	However, those objections did not cure
the reason for the dismissal: 	Ms. Schurman admitted that she had failed to
exhaust her claims in state court. 	Id. 	She argued that the state court had
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denied her Due Process rights during her criminal case and, therefore, could
not be trusted to handle her habeas claims. 	Id.
Ms. Schurman filed the instant civil complaint pursuant to § 1983 on
September 20, 2021. 	Docket No. 1. 	She alleges the defendants are violating
her First, Sixth, and Fourteenth Amendment right of access to the courts by
charging her 25 cents a page for legal copies and 41 cents per minute for legal
phone calls. 	Id. pp. 2-3. 	She alleges that defendants’ actions resulted in
denial of her petition for habeas corpus (her second federal § 2254 petition)
because it was untimely.1 Id. at p. 1. 	For relief she seeks a refund of $1,500
she claims she has paid in legal phone call expenses, legal copies, and
envelopes she has had to purchase with her own money because defendants
did not provided her with envelopes. 	Id.
Ms. Schurman was apparently released from detention as she updated
her address with this court on May 6, 2022, to an address that is a single
family home. 	Docket No. 12.
B. 	Prior Motions in This Civil Action
Ms. Schurman previously filed a motion to admit four exhibits and for
issuance of a subpoena duces tecum. 	Docket No. 15. 	In this document,
Ms. Schurman clarified that the habeas claim which she alleges was denied for
being untimely was her second federal habeas petition. 	Id. at p. 1. 	She claims
1 In fact, neither of her federal petitions were dismissed because they were
untimely. 	They were both dismissed for failure to exhaust claims in state
court. 	The only thing that was “untimely” was Ms. Schurman’s objections to
the report and recommendation in her second federal habeas case. 	The
petition itself was timely.
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she mailed objections to this magistrate judge’s report and recommendation in
a timely manner, but that defendants caused her objections to be received by
this court after the deadline for making objections had expired. 	Id. at pp. 1-2.
The district court denied this motion to admit exhibits, explaining that exhibits
are only admitted during a hearing or trial. 	Docket No. 19. 	Because there was
not a hearing or trial that had been held, it was not proper to move to admit
exhibits at this juncture of the lawsuit. 	Id.
Ms. Schurman also filed two separate motions for subpoenas duces
tecum, one to the jail phone service provider, Reliance Telephone, Inc. (Docket
No. 13), and another to Yankton County Jail (Docket No. 14). 	The district
court denied Ms. Schurman’s motion for a subpoena duces tecum to the jail,
explaining that subpoenas are not the proper vehicle to obtain discovery from a
party, such as defendant Yankton County Jail. 	Docket No. 18. 	The court
explained to Ms. Schurman that she should serve the jail with requests for the
production of documents and interrogatories as those were the proper
discovery vehicles for parties. 	Id.
The district court granted in part and denied in part Ms. Schurman’s
motion for a subpoena to Reliance Telephone, Inc. 	Docket No. 20. 	The court
directed the clerk’s office to issue a signed but otherwise blank subpoena to
Ms. Schurman so that she could complete the subpoena and serve it on the
non-parties. 	Id.
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C. 	Current Motions
1. 	Docket No. 22
This pleading was filed by Ms. Schurman as a “reply” to the motions at
Docket Nos. 13-15 discussed above. 	Docket No. 22. 	In the motion she asks
the court to issue an order to show cause why Yankton County Jail should not
comply with her subpoenas. 	Id. 	She asserts she wanted to “admit” her
exhibits because they are relevant to the issues raised in her complaint and
defendants’ answer. 	Id.
2. 	Docket No. 25
This pleading is styled as a motion to update Ms. Schurman’s request for
damages. 	Docket No. 25. 	To the $1,500 she asked for in her complaint, she
seeks to add a request for $3,781.00 for the costs of her court-appointed
lawyer in her “underlying” state court criminal case as well as the $1,295.00
she was charged for the costs of her incarceration. 	Id.
3. 	Defendant’s Motion to Compel, Docket No. 28
Defendants allege they served Ms. Schurman with interrogatories and
requests for the production of documents on May 13, 2022. 	Docket No. 28.
Those requests would have required Ms. Schurman to file written responses
and produce copies of documents by June 13, 2022. 	See Fed. R. Civ. P. 33 and
34. 	Ms. Schurman did not respond to defendants’ discovery requests in any
fashion. 	Docket No. 28.
Accordingly, defendants’ counsel sent Ms. Schurman a letter inquiring
about her responses on June 20, 2022. 	Id. 	When defendants’ counsel received
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no response to the letter, he filed the instant motion to compel. 	Id. 	Defendants
seek an award of attorneys fees pursuant to Rule 37 for having to file the
motion to compel. 	Id.
4. 	Defendant’s Motion, Docket No. 35
Despite the district court’s guidance to Ms. Schurman that she cannot
use a subpoena to obtain documents from a party, Ms. Schurman served
Yankton County Jail with a subpoena approximately one month after the
expiration of the discovery deadline contained in the district court’s scheduling
order. 	Docket No. 37. 	Ms. Schurman did not move to extend the discovery
deadline. 	Defendant Yankton County Jail seeks to have the subpoena quashed
on the grounds that it was served outside the discovery deadline and that the
subpoena is improper because Yankton County Jail is a party herein. 	Id.
DISCUSSION
A. 	The Stages of Litigation
1. 	Discovery
To assist Ms. Schurman, the court provides the following explanation. 	A
civil case is initiated by filing a complaint and serving a copy of that complaint
along with a summons on each defendant. 	Each defendant then files a formal
answer. 	This frames the claims and issues for the lawsuit. 	The “parties” to a
lawsuit are the persons named in the caption of plaintiff’s complaint: 	the
plaintiff and the defendants. 	Anyone who is not named in the caption to
plaintiff’s complaint is a “non-party.”
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The next stage of the litigation is discovery. 	The parties can serve each
other with written questions to be answered under oath—these are called
interrogatories. 	The district court’s scheduling order (Docket No. 11) limits the
parties to serving a maximum of 25 interrogatories each. 	Docket No. 11 at
p. 1, ¶ 2. 	The rules governing interrogatories are found in Federal Rule of Civil
Procedure 33, a copy of which the district court provided to Ms. Schurman on
February 11, 2022. 	Id. 	Interrogatories must be answered within 30 days of
when they are received.
Another permissible way to conduct discovery on a party is to serve the
other party with a request for the production of documents. 	This is governed
by Federal Rule of Civil Procedure 34, a copy of which the district court
previously provided to both parties. 	When a party receives a request for the
production of documents, the party must, within 30 days after being served
with the request, allow the requesting party to inspect the documents or
provide copies of the documents which must be delivered to the requesting
party.
Parties may also take oral depositions of other parties, which are
recorded by a court reporter. 	See Fed. R. Civ. P. 30. 	The party being deposed
is placed under oath and the party taking the deposition asks questions. 	The
other party may also ask questions at the deposition after the requesting party
has finished. 	The court reporter’s fee and the cost of the transcript for the
deposition are paid for by the party who noticed the deposition.
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Subpoenas, both those that call for witness testimony and those that call
for the production of documents, are governed by Federal Rule of Civil
Procedure 45. 	If a non-party is to be deposed, a subpoena must be used to
compel their attendance at a deposition, a hearing, or a trial. 	Documents are
obtained from non-parties through the service of a subpoena duces tecum.
Non-parties cannot be served with interrogatories and requests for documents
under Rules 33 and 34.
The parties serve each other with discovery requests and the appropriate
responses thereto, but those discovery requests and responses are not to be
filed with the court.
Rule 26, again a copy of which the district court has given
Ms. Schurman, explains the appropriate scope of discovery and the types of
objections to discovery which may be made. 	If a party objects to certain
discovery requests or fails to respond to discovery requests, the requesting
party has an obligation to contact the responding party and attempt in good
faith to work out a compromise with regard to the disputed discovery requests.
See Fed. R. Civ. P. 37(a)(1). 	Only after making this effort to resolve the dispute
without involving the court may a party file a motion to compel the other party
to disgorge discovery. 	A party who files a successful discovery motion may be
awarded sanctions against the other party, especially in the form of the moving
party’s attorney’s fees in preparing the motion.
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2. 	Dispositive Motions
After the discovery phase is over, either party or both parties may file a
motion seeking to have the court and not a jury determine the entire case or
certain issues in the case. 	This is done pursuant to Federal Rule of Civil
Procedure 56. 	In this district, a party moving for summary judgment under
Rule 56 must include with his or her motion a separate statement of
undisputed material facts, individually numbered. 	Each assertion of fact must
be supported by a document, an admission by the party opponent, or an
affidavit. 	The moving party must also file a brief containing law and argument
demonstrating that the moving party is entitled to judgment as a matter of law.
The party against whom summary judgment is requested must respond
to each of the moving party’s statements of fact by either admitting or denying
the fact, or stating that they cannot admit or deny because they do not have
knowledge of facts which would allow them to admit or deny. 	Each denial of a
statement of fact by the responding party must be supported by a document,
an admission by the party opponent, or an affidavit. 	The responding party
must also submit a brief containing law and argument demonstrating that the
moving party is not entitled to judgment as a matter of law.
3. 	The Trial
If summary judgment motions are denied, or if such motions are not
made, the case is tried. 	This is where the merits of the plaintiff’s claims and
defendants’ defenses are presented. 	Evidence is presented, first by the
plaintiff, who has the burden of proof. 	Evidence can take the form of witness
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testimony under oath, stipulations by the parties (facts that the parties agree
upon), and documents. 	Documents are usually marked as exhibits and offered
for admission. 	The other party may object if there is a reason to do so. 	Then
the district court decides whether to allow the exhibit into evidence or not.
After the plaintiff has presented her case, the defendant has an opportunity to
present evidence.
At the end of the trial, the jury renders a verdict in favor of the party they
believe should prevail. 	The district court then usually enters a judgment based
on the verdict. 	After judgment is entered, the losing party may appeal to the
Eighth Circuit.
B. 	The Currently-Pending Motions
1. 	Docket Nos. 22 & 35
The motion at Docket No. 22 must be denied and the motion at Docket
No. 35 must be granted because, as the district court previously explained to
Ms. Schurman, she cannot serve Yankton County Jail, which is a party to this
litigation, with subpoenas. 	Instead, she must use the methods of discovery
that are made for use with parties: 	interrogatories (Rule 33), requests for the
production of documents (Rule 34), and depositions (Rule 30). 	Ms. Schurman
is admonished to read these rules and comply with the procedures described in
them.
Ms. Schurman’s renewed request for the “admission” of exhibits in her
motion at Docket No. 22 is also denied. 	As the district court explained, and as
also explained above, exhibits may be used in moving for summary judgment
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or responding to summary judgment motions. 	Otherwise, they are to be offered
for admission at a hearing or a trial. 	Barring a summary judgment motion, a
hearing, or a trial, documents are simply discovery and should be kept by the
parties but not filed with the court.
2. 	Docket No. 25
Ms. Schurman’s complaint requested damages in the amount of $1,500.
Her pleading at Docket No. 25 seeks to increase the amount of damages she is
requesting in this lawsuit. 	Defendants object to the motion in boilerplate
language and note that Ms. Schurman has not referenced any rule or law upon
which her motion is based. 	Docket No. 27.
The court interprets Ms. Schurman’s motion to be an attempt to amend
her complaint so as to increase the amount of damages requested therein.
Motions to amend a complaint after an answer has been filed are governed by
Federal Rule of Civil Procedure 15(a)(2). 	That rule dictates that amendments
should be freely given when justice so requires. 	Defendants do not argue that
they would be prejudiced by the amendment. 	The proposed amendment does
not substantively change any of Ms. Schurman’s claims. 	Accordingly, the
court will grant the motion. 	Ms. Schurman is directed to file an amended
complaint with the court within 14 days of this order with the updated
damages request reflected in the amended complaint.
3. 	Docket No. 28
Both interrogatories and requests for production must be responded to
within 30 days after they are served. 	Fed. R. Civ. P. 33 & 34. 	A “response” is
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either producing the answer or document requested or inserting a proper
objection to the request based on a legal right. 	Both responses and objections
must be made in writing and delivered to the other party. 	Answers to
interrogatories must be given under oath.
Before a discovery motion can be filed, the moving party must attempt in
good faith to resolve the issue with the opposing party. 	Fed. R. Civ. P. 37(a)(1).
The court finds defendants satisfied this precondition by sending
Ms. Schurman a letter.
The court grants defendants’ motion to compel at Docket No. 28.
Ms. Schurman is directed to provide written responses to defendants’
interrogatories, under oath, within 14 days from the date of this order. 	Ms.
Schurman is directed to identify documents in response to defendants’ request
for the production of documents and either provide copies of those documents
to defendants, or allow defendants to inspect her documents, all within 14 days
of the date of this opinion.
The court denies defendants’ motion for attorney’s fees—this time.
Ms. Schurman is a lay person and uneducated in the law. 	Nevertheless,
Ms. Schurman is now on notice of what the law requires of her. 	She is
expected henceforth to know, understand and follow the Federal Rules of Civil
Procedure.
Normally, when a motion to compel is granted, the moving party is
entitled to sanctions which can include the cost of the moving party’s
attorney’s fees that were incurred in making the motion. 	See Fed. R. Civ.
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P. 37(d)(3). 	If Ms. Schurman neglects her responsibilities in the future in
regard to discovery requests made of her by defendants, the court will not deny
a request for attorney’s fees again based on Ms. Schurman’s lay status.
CONCLUSION
Based on the foregoing facts, law and analysis, it is hereby
ORDERED that Ms. Schurman’s motion at Docket No. 22 is denied in its
entirety. 	It is further
ORDERED that defendant Yankton County Jail’s motion at Docket No.
35 is granted and the subpoena served on it by Ms. Schurman is quashed. 	It
is further
ORDERED that Ms. Schurman’s motion at Docket No. 25 is granted.
Ms. Schurman is directed to file an amended complaint within 14 days of the
date of this opinion containing her updated damages request. 	Defendants
shall file an amended answer to the amended complaint within 14 days of the
filing of the amended complaint with this court. 	It is further
ORDERED that defendants’ motion to compel, Docket No. 28, is granted
in part and denied in part. 	Ms. Schurman is ordered to file written sworn
responses to defendants’ interrogatories and responses to the requests for the
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production of documents within 14 days of the date of this order. 	Defendants’
request for attorney’s fees is denied.
DATED this 26th day of August, 2022.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge
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