Bauder v. Fudge

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
_________________________________
DANIEL COLLINS BAUDER,

Plaintiff - Appellant,

v.

DELYNN FUDGE, in her individual
capacity; STEVEN BICKLEY, in his
official capacity as Executive Director of
the Oklahoma Parole Board,
*

Defendan
ts - Appellees.

No. 19-6162
(D.C. No. 5:19-CV-00758-R)
(W.D. Okla.)
_________________________________
ORDER AND JUDGMENT
**

_________________________________
Before BRISCOE, MATHESON, and CARSON, Circuit Judges.
_________________________________
Daniel Collins Bauder, an Oklahoma inmate appearing pro se, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 claims alleging violation of his

*
Pursuant to Fed. R. App. P. 43(c)(2), Steven Bickley is substituted for
Delynn Fudge, former Executive Director of the Oklahoma Parole Board, as an
appellant in this action with respect to the claims brought against Ms. Fudge in her
official capacity.
**
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit

July 2, 2020

Christopher M. Wolpert
Clerk of Court
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constitutional rights in connection with his applications for parole. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
I. Background
Oklahoma sentenced Bauder in June 1998 to life imprisonment for committing
first degree murder. The Oklahoma Pardon and Parole Board reviewed Bauder’s
requests for parole in 2012, 2015, and 2018. It denied each of them.
Bauder then brought this suit in 2019, alleging the Parole Board violated his
rights to due process in rejecting his applications for parole. He based his claims on
a theory that the 1997 Oklahoma Truth in Sentencing Act, 1997 Okla. Sess. Laws
501–854, required the Parole Board to create procedures to determine what his
sentence would have been if certain matrices included in the Act had applied to his
crime. And he claimed the Parole Board failed to meet this requirement.
The magistrate judge screened the complaint under 28 U.S.C. § 1915A and
recommended dismissing it for failure to state a claim, in part for being untimely.
The magistrate judge concluded that a two-year limitations period applied and that
Bauder’s claims accrued no later than July 2012. He reasoned that since Bauder
“was aware of the procedures the Board used at his initial parole docket” in 2012, the
limitations period began running then. R. at 41. And he concluded that neither of the
Parole Board’s 2015 or 2018 denials resulted in a new injury. He therefore
recommended finding that the complaint failed to state a claim. See Jones v. Bock,
549 U.S. 199, 215 (2007) (“If the allegations . . . show that relief is barred by the
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applicable statute of limitations, the complaint is subject to dismissal for failure to
state a claim . . . .”).
Bauder filed a timely objection to the magistrate judge’s report and
recommendation. Regarding the timeliness of his claims, he argued as follows:
[Bauder’s] claim is based on his reconsideration in relation to the
Board’s 2018 hearing, the clear language of the statute and not as a
successive denial of parole being a new inquiry but being denied the
mandated procedure for his crime committed prior to July 1, 1998, of
what sentence he would have received pursuant to the Truth-in-
Sentencing -Applicable Matrix- Sentencing and Release guidelines-
“Indeterminate Sentencing System” provisions in Section 6, 598, 599,
600 and 601, Chapter 133, O.S.L. 1997 re-enacted and revived by
effective dates in 57, O.S. Supp. 1998-2018, § 332.7.
R. at 50–51.
The district judge found that in 2012 the Parole Board did not “appl[y] what
[Bauder] contends is the mandatory matrix determination.” Id. at 67. And he noted
that Bauder failed to “identify any procedure or result that changed between his first
hearing in 2012 and his most recent hearing in 2018.” Id. at 67 n.3. The district
judge therefore agreed that the statute of limitations barred Bauder’s claims and
adopted the report and recommendation.
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II. Discussion
We review de novo the district court’s dismissal of an action under 28 U.S.C.
§ 1915A(b) for failure to state a claim, applying the same standards we employ to review
dismissals under Fed. R. Civ. P. 12(b)(6). See Young v. Davis, 554 F.3d 1254, 1256

1
The district judge also agreed with the magistrate judge’s conclusion that
Bauder failed to state a claim on the merits.
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(10th Cir. 2009). Because Bauder appears pro se, we construe his filings liberally but
do not serve as his advocate. See Garrett v. Selby Connor Maddux & Janer,
425 F.3d 836, 840 (10th Cir. 2005).
The district court found that the Parole Board committed the alleged errors at
issue in connection with Bauder’s 2012 parole application. Bauder persists in failing
to “identify any procedure or result that changed between his first [parole] hearing in
2012 and his most recent [parole] hearing in 2018.” R. at 67 n.3; see also Brown v.
Ga. Bd. of Pardons & Paroles, 335 F.3d 1259, 1262 (11th Cir. 2003) (per curiam)
(“[S]uccessive denials of parole do not involve separate factual predicates and
therefore do not warrant separate statute-of-limitations calculations.”). And Bauder
fails to identify any error in the district court’s reasoning with respect to the statute
of limitations. Cf. Nixon v. City & Cty. of Denver, 784 F.3d 1364, 1366 (10th Cir.
2015) (stating that the appellant must “explain what was wrong with the reasoning
that the district court relied on in reaching its decision”). We therefore affirm the
district court’s ruling that the applicable two-year statute of limitations bars this suit.
III. Conclusion
We affirm the district court’s dismissal of this case.
Entered for the Court

Joel M. Carson III
Circuit Judge
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