Rindahl v. Daugaard et al
Filing
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ORDER denying as moot 29 Motion to Amend/Correct; denying as moot 35 Motion to Amend/Correct; adopting 48 Report and Recommendation; overruling 53 Objection to Report and Recommendation.; overruling 56 Objection to Report and Recommendation .; denying 2 Motion for Leave to Proceed in forma pauperis; denying as moot 3 Motion to Appoint Counsel ; denying as moot 4 Motion; denying 16 Motion for TRO; denying as moot 17 Motion for Preliminary Injunction; denying as moot 23 Motion to Change Venue. Signed by Chief Judge Karen E. Schreier on 9/29/2011. (KC)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
RANDY RINDAHL,
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Plaintiff,
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vs.
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DENNIS DAUGAARD, Governor, State of
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South Dakota;
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TIM REISCH, Sec. of Corrections;
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D. WEBER, Warden;
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DARYL SLOUCHES, Deputy Warden;
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O. SURREAL, Assc. Warden;
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D. YOUNG, Asst. Warden Annex Prison;
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T. PINTO, Assc. Warden;
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C. VAN VERNE, Senior Major;
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MAJOR T. LINNIWEBER, Security Major;
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MAJOR BAKER;
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CAPTAIN RODOSKY;
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K. DITTMONSON, Section Manager;
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SECTION MANAGER FANTROY;
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SGT. FEDT;
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SCO WYNIA;
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SGT. WYNIA;
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SCO DAVIS;
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SCO BAHR;
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SCO MORLISE;
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KAYLA S., coordinator for the South Dakota )
DOC within the Sioux Falls Prison System; )
SCO PAROLE AGENT McCLOUD;
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SECTION MANAGER WOODWARD;
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TEACHER ANDERSON, teacher for the
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South Dakota DOC Annex Prison Law
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Library;
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PARALEGAL BIDNE, paralegal for the South )
Dakota DOC within Sioux Falls Prison
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System;
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LARSON, Correctional Personnel;
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G. TAYLOR, Section Manager;
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K. TINKER, Administrator Programs
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Department of Health; and
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J. SURREAL, health care manager,
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Defendants.
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Civ. 11-4082
ORDER
Plaintiff, Randy Rindahl, filed a 42 U.S.C. § 1983 action against
defendants alleging that defendants caused various harms to him from 2008 to
2010 while he was incarcerated at the South Dakota State Penitentiary (SDSP).
Rindahl is still incarcerated at the SDSP. While Rindahl initially filed this
action in the Eastern District of Wisconsin, the case was transferred to this
court because venue was improper in the Eastern District of Wisconsin but is
proper in the District of South Dakota. Docket 16. Rindahl moves for leave to
proceed in forma pauperis (IFP). Docket 2. According to 28 U.S.C. § 1915A, the
court must screen each prisoner case to determine if it should proceed IFP. The
court referred the initial screening to Magistrate Judge John E. Smiko
pursuant to 28 U.S.C. § 636(b)(1)(B). Docket 31.
Magistrate Judge Simko recommended that this court dismiss Rindahl’s
complaint with prejudice because Rindahl is a three-strikes litigant who failed
to sufficiently allege an imminent danger of serious harm as required by 28
U.S.C. § 1915(g) and as a Rule 11 sanction for committing fraud on the court.
Rindahl objects to the findings in the Report and Recommendation (Docket 56)
and the proposed Rule 11 sanctions. Docket 53. Defendants have not objected
to the Report and Recommendation or responded to Rindahl’s objections.
STANDARD OF REVIEW
In considering a magistrate judge's recommendation on a dispositive
matter, such as dismissing a complaint, a district court must make a "de novo
determination of those portions of the report or specified proposed findings or
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recommendations to which objection is made." 28 U.S.C. § 636(b)(1). A de novo
review requires a district court to make its own determination of any disputed
issue. United States v. Portmann, 207 F.3d 1032, 1033 (8th Cir. 2000).
Additionally, when a party objects to the factual findings of a magistrate judge,
the district court must make its own de novo determination of the facts with no
deference to the magistrate judge's findings. See 28 U.S.C. § 636(b)(1); Fed. R.
Civ. P. 72(b). The court has conducted a de novo review of the record. For the
reasons explained below, the court adopts the Report and Recommendation in
its entirety.
DISCUSSION
I.
IFP Objections
A.
Objection Number One
In objection number one, Rindahl disputes Magistrate Judge Simko’s
calculation of his strikes pursuant to 28 U.S.C. § 1915. The Prison Litigation
Reform Act provides:
In no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding under this section if the
prisoner has, on 3 or more prior occasions, while incarcerated or
detained in any facility, brought an action or appeal in a court of
the United States that was dismissed on the grounds that it was
frivolous, malicious, or fails to state a claim upon which relief may
be granted, unless the prisoner is under imminent danger of
serious physical injury.
§ 1915(g) (emphasis added). Section 1915(g), commonly referred to as the
“three strikes” provision, “does not preclude the inmate from filing additional
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actions but does deny him the advantages of proceeding in forma pauperis.”
Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003).
“Imminent danger of serious physical injury” requires the prisoner to
make specific allegations of an ongoing serious physical injury or a pattern of
misconduct evidencing the likelihood of imminent serious physical injury. Id.
The prisoner must be in imminent danger “at the time of filing.” Ashley v.
Dilworth, 147 F.3d 715, 717 (8th Cir. 1998) (“Allegations that the prisoner has
faced imminent danger in the past are insufficient to trigger this exception to
§ 1915(g) . . . .”).
Rindahl has a substantial litigation history. Magistrate Judge Simko
determined that Rindahl has five strikes under § 1915. After reviewing
Rindahl’s litigation history, the court agrees that Rindahl has at least five
strikes.
First, in Rindahl v. Class et al., Civ. 95-4207 (D.S.D. 1995), Rindahl
alleged that the South Dakota Department of Corrections (DOC) failed to
adequately enforce its own policies. The court dismissed that action as frivolous
pursuant to § 1915(d), Civ. 95-4207, Dockets 5, 6, which counts as Rindahl’s
first strike. See § 1915(g) (stating that a dismissal as frivolous is a strike).
Second, in Rindahl v. Class et al., Civ. 96-4116 (D.S.D. 1996), Rindahl claimed
that his conditions in the special housing unit were unacceptable. The court
dismissed that action for failure to state a claim upon which relief may be
granted pursuant to § 1915(d), Civ. 96-4116, Dockets 5, 6, which is Rindahl’s
second strike.
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Third, in Rindahl v. Class et al., Civ. 96-4117, Rindahl claimed that prison
officials filed disciplinary reports against him in retaliation for filing a religious
rights lawsuit. That action was dismissed for failure to state a claim upon which
relief may be granted pursuant to § 1915(d), Civ. 96-4117, Dockets 5, 6, which
constitutes Rindahl’s third strike. Fourth, in Rindahl v. Weber et al., Civ. 084041 (D.S.D. 2008), Rindahl claimed that he was sexually assaulted by a prison
guard in 2003 and that prison personnel did not properly investigate the
matter. While Rindahl initially proceeded IFP, the case was later dismissed for
failure to state a claim upon which relief may be granted pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii), Civ. 08-4041, Docket 152, and, thus, was Rindahl’s fourth
strike. The Eighth Circuit summarily affirmed the dismissal. Civ. 08-4041,
Docket 246.
Fifth, in Rindahl v. Reisch, Civ. 10-4004 (D.S.D. 2010), Rindahl claimed
that prison officials were deliberately indifferent to his medical needs. Even
though Rindahl was a “three-strike” litigant, the court initially granted Rindahl
IFP status. Docket 84 at 1. The court later revoked that IFP status based upon
Rindahl’s misrepresentations regarding his medical care. The court dismissed
that case for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii),
Civ. 10-4004, Docket 84, which was Rindahl’s fifth strike. The Eighth Circuit
denied IFP status on appeal. Civ. 10-4004, Docket 91.
Beyond these five strikes, Rindahl has initiated three other lawsuits in
this district that were dismissed because Rindahl failed to prepay the filing fee
and failed to allege imminent danger of serious physical harm. See Rindahl v.
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Weber, Civ. 09-4084 (D.S.D. 2009); Rindahl v. Reisch, Civ. 09-4085 (D.S.D.
2009); and Rindahl v. Reisch, Civ. 10-4156 (D.S.D. 2010). He currently has
numerous suits pending in this court. See Rindahl v. Daugaard et al., Civ. 114085 (D.S.D. 2011); Rindahl v. Daugaard et al., Civ. 11-4086 (D.S.D. 2011);
Rindahl v. Daugaard et al., Civ. 11-4130 (D.S.D. 2011); and Rindahl v.
Daugaard et al., Civ. 11-4131 (D.S.D. 2011).
After reviewing the record de novo, the court adopts Magistrate Judge
Simko’s recommendation that Rindahl has at least five strikes for purposes of
§ 1915(g). Thus, Rindahl’s objection number one is overruled.
B.
Objection Numbers Two, Three, Four, Five, and Six
In his objection numbers two, three, four, five, and six, Rindahl disputes
the Report and Recommendation’s analysis concerning whether Rindahl can
proceed IFP in this action. Magistrate Judge Simko determined that because
Rindahl cannot show a threat of imminent physical danger, his complaint
should be dismissed.
In order for a three-strikes litigant to proceed IFP, the complaint must do
more than make conclusory assertions that plaintiff is in imminent danger of
physical harm. Martin, 319 F.3d at 1050. Instead, the plaintiff must make
specific allegations of an ongoing serious physical injury or allege a pattern of
misconduct evidencing the likelihood of imminent serious physical injury. Id.
The prisoner must be in imminent danger “at the time of filing.” Ashley v.
Dilworth, 147 F.3d 715, 717 (8th Cir. 1998) (“Allegations that the prisoner has
faced imminent danger in the past are insufficient to trigger this exception to
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§ 1915(g) . . . .”); see also Martin, 319 F.3d at 1050 (“[T]he exception focuses on
the risk that the conduct complained of threatens continuing or future injury,
not on whether the inmate deserves a remedy for past misconduct.”).
Rindahl’s complaint contains 116 separately numbered paragraphs. But
all of Rindahl’s allegations “rehash” incidents that occurred between 2008 and
2010, during the time that Rindahl was in disciplinary segregation at SDSP.
Section 1915(g) prohibits IFP status for an inmate seeking a remedy for past
misconduct by prison officials. Because Rindahl has not shown that the
conduct he complains about in this action is continuing conduct or creates a
risk for future injury, Rindahl has not shown that he is in imminent danger of
serious physical injury.
Moreover, Rindahl’s claims in this action are substantially similar to his
claims in Rindahl v. Reisch et al., Civ. 10-4156 (D.S.D. 2010). See Civ. 10-4156,
Docket 1 and attachments. This court dismissed that action because the
underlying facts had already been litigated in other lawsuits, and Rindahl
alleged no facts giving rise to a future injury. Civ. 10-4156, Docket 10. Rindahl
does not get endless bites at the same apple; he cannot allege the same claims
in this action that the court dismissed in prior actions.
The court need not address Rindahl’s detailed arguments about what he
alleges occurred between 2008 and 2010 because the claims have already been
litigated, and Rindahl has not shown that he is in imminent danger of physical
injury as is required under § 1915(g). Accordingly, Rindahl’s objection numbers
two, three, four, five, and six are overruled.
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II.
Rule 11
In screening Rindahl’s complaint, Magistrate Judge Simko suspected that
some of Rindahl’s exhibits had been forged or altered, specifically exhibits
labeled “SDSP-8,” “SDSP-Misconduct,” and “SDSP-Respiratory.” Dockets 37-1,
37-2, 37-3. Among these documents are three pages purportedly signed by
Weber on DOC stationery that are responses to Rindahl’s administrative remedy
requests. Magistrate Judge Simko ordered a show cause hearing, which was
held on Tuesday, August 9, 2011, to determine the documents’ authenticity.
After listening to the testimony from Rindahl, Weber, Mary Lou Burggraaf, and
Joseph Haas, and reviewing the evidence, Magistrate Judge Simko determined
that the three documents were forged or fraudulent documents and that
Rindahl forged them. Magistrate Judge Simko further found that Rindahl
knowingly made false representations to the court regarding the three
documents in violation of Federal Rules of Civil Procedure 11(b)(1), (3).
A.
Factual Findings
Rindahl does not object to Magistrate Judge Simko’s finding that he
committed fraud on the court. See Docket 53. But Rindahl does dispute what
occurred at the show cause hearing in his briefs in support of his objections.
Dockets 54, 55. The court will construe Rindahl’s arguments in Dockets 54 and
55 as objections to the Report and Recommendation’s Rule 11 analysis. See
Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004) (reasoning that courts should
liberally construe a pro se litigant’s filings).
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Rindahl argues that Burggraaf, the SDSP West Hall Coordinator and
notary, would have confiscated any forged documents as contraband. Because
Burggraaf did not confiscate these documents, Rindahl alleges that his exhibits
are not forgeries. Rindahl further contends that because Burggraaf notarizes
documents for prisoners, her signature ensures the truthfulness of his
documents.
A notary’s signature does not conclusively prove a document’s
authenticity or veracity. Instead, the person seeking to have a notary witness
him sign a document attests that the document is truthful. Rindahl could have
lied to Burggraaf when he asked her to notarize the statements. Furthermore,
as explained by Burggraaf at the show cause hearing, she only reads legal mail
to determine whether it is contraband; she does not read it for content.
Fraudulent legal mail, though reprehensible and sanctionable, is not
“contraband” according to the DOC’s policies.
Rindahl further contends that “Weber had lied more than once during the
questioning,” specifically that more than one format exists for a DOC response
to an inmate’s administrative remedy request. Docket 54 at 2. As Magistrate
Judge Simko noted, Weber “acknowledged he does communicate with inmates
in other formats, but the administrative remedy response has a standard
format.” Docket 48 at 11 n.9. Even assuming that more than one form exists
which Weber or another prison official could have used to respond to Rindahl’s
administrative remedy request, Rindahl offers no argument that he did not
forge or otherwise offer false documents.
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This court has conducted a de novo review of Dockets 37-1, 37-2, and 373. These documents are inconsistent in type-font and format with the DOC’s
usual forms that Weber and other DOC officials use when responding to an
inmate’s administrative remedy request. Compare Dockets 37-1, 3 37-2, 37-3,
with Rindahl v. Reisch et al., Civ. 11-4086, Dockets 1-1 at 4, 13, 21 (containing
Weber’s responses to Rindahl’s administrative remedy requests in a companion
case).
The type-font in Dockets 37-1, 37-2, and 37-3 matches the distinctive, all
capital type-font used in Rindahl’s typed pleadings, see, e.g., Dockets 1, 2, 3, 4,
and does not conform to the type-font usually used by Weber. See Civ. 11-4086,
Dockets 1-1 at 4, 13, 21. Dockets 37-1, 37-2, and 37-3 also lack the traditional
hallmarks of a DOC administrative remedy response, including a reference
number, a reference code, and the names of the individuals who received
copies. Furthermore, Dockets 37-1, 37-2, and 37-3 contain spelling errors that
are similar to spelling errors in Rindahl’s other pleadings; compare Docket 1 at
¶ 100 (“When plaintiff has offered no ressistence . . . .”) with Docket 37-2 (“As
to the matter of the conduct . . . when offering no form of ressistence . . . .”);
compare Docket 1 at ¶¶ 81, 82 (“When escorting plaintiff to the shower had
grabbed at my testicles and grion . . . making sexual justures towards plaintiff
. . . .”) with Docket 37-1 (“You also stated that he had used threatening sexual
justures towards you and grabbed at your grion . . . .”); compare Dockets 37-1,
37-2, 37-3 (containing spelling errors) with Civ. 11-4086, Dockets 1-1 at 4, 13,
21 (containing no spelling errors).
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After conducting a de novo review of Dockets 37-1, 37-2, and 37-3, the
court agrees with Magistrate Judge Simko’s finding that Dockets 37-1, 37-2,
and 37-3 are forged or fraudulent documents. Rule 11 states that by submitting
a document to the court, “an attorney or unrepresented party certifies that to
the best of the person’s knowledge, information, and belief . . . [the document] is
not being presented for any improper purpose . . . [and that] the factual
contentions have evidentiary support . . . .” Fed. R. Civ. P. 11(b)(1), (3)
(emphasis added). The court agrees with Magistrate Judge Simko that Rindahl
knew that the documents were forged and that Rindahl fabricated this evidence.
Furthermore, the court finds that Rindahl’s fraudulent documents are a
fraud on the court. A finding that a party has committed fraud on the court
must be supported by clear and convincing evidence. In re Coordinated Pretrial
Proceedings in Antibiotic Antitrust Actions, 538 F.2d 180, 195 (8th Cir. 1976). The
court finds that clear and convincing evidence supports the finding that Rindahl
has committed fraud on the court by creating and submitting fabricated
evidence. Thus, the court agrees with the Report and Recommendation that
Rindahl’s conduct violates Rule 11. To the extent that Rindahl objects to
Magistrate Judge Simko’s factual findings that he committed fraud on the
court, those objections are overruled.
B.
Rule 11 Sanctions
As a sanction under Rule 11, and as an alternative for dismissing
Rindahl’s complaint for failure to make the necessary showing under § 1915(g)
in order to proceed IFP, Magistrate Judge Simko found that dismissal of
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Rindahl’s complaint with prejudice would be an appropriate sanction.
Magistrate Judge Simko further recommended that if Rindahl ever files another
state or federal action anywhere in the United States, he should be required to
file the Report and Recommendation and the district court’s opinion with his
complaint or other initial filing. Rindahl objects to these sanctions and argues
that Magistrate Judge Simko violated Rule 11(c)(2). Docket 53 at 1.
Rule 11(c)(2) discusses when a party can make a motion for sanctions: “A
motion for sanctions must be made separately from any other motion . . . .”
While it appears that defendants requested monetary sanctions pursuant to
Rule 11 at the show cause hearing, the Report and Recommendation does not
cite Rule 11(c)(2) as grounds for imposing sanctions. Instead, Rule 11(c)(3)
allows the court “[o]n the court’s initiative” to impose sanctions for a Rule 11
violation. See Fed. R. Civ. P. 11(c)(3) (“On its own, the court may order an
attorney, law firm, or party to show cause why conduct specifically described in
the order has not violated Rule 11(b).”). Magistrate Judge Simko notified
Rindahl that the court would hold a show cause hearing to determine the
authenticity of Dockets 37-1, 37-2, and 37-3 and “whether Rule 11 Sanctions
should be imposed.” Docket 37 at 2. Thus, Magistrate Judge Simko followed the
Rule 11(c)(3) procedure for ordering Rindahl to show cause why sanctions
should not be imposed for submitting fraudulent documents to the court.
As a sanction, Magistrate Judge Simko recommended that this court
dismiss Rindahl’s complaint with prejudice. “When a litigant’s conduct abuses
the judicial process, the Supreme Court has recognized dismissal of a lawsuit to
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be a remedy within the inherent power of the court.” See, e.g., Pope v. Fed.
Express Corp., 974 F.2d 982, 984 (8th Cir. 1992) (citing Chambers v. NASCO,
Inc., 501 U.S. 32, 45 (1991)).
Fraud is an abuse of the judicial process. See, e.g., In re Coordinated
Pretrial Proceedings in Antibiotic Antitrust Actions, 538 F.2d at 195 (reasoning
that “[a] finding of fraud on the court is justified only by the most egregious
misconduct directed to the court itself, such as . . . fabrication of evidence . . .
.”). Moreover, because Rindahl has engaged in fraud in other actions and has
been notified that fraudulent conduct may result in sanctions, see Rindahl v.
Daugaard et al., Civ. 11-4086 (D.S.D. 2011), Docket 35 at 6-8 (finding that
Rindahl submitted a false or forged affidavit but declining to recommend Rule
11 sanctions because defendants did not contest the affidavit), the Rule 11
sanctions should not be a surprise to him. The court agrees with Magistrate
Judge Simko’s recommendation to dismiss Rindahl’s complaint with prejudice
as a Rule 11 sanction. The court further holds that Rindahl’s motion to amend
his complaint with prejudice to add new defendants (Docket 29) is denied
because the underlying facts are based on Rindahl’s fabricated evidence.
Defendants requested monetary sanctions at the show cause hearing, but
Magistrate Judge Simko recommended that monetary sanctions not be ordered
because “Rindahl is an indigent prisoner with little prospect of ever earning any
significant money.” Docket 8 at 15. Instead, Magistrate Judge Simko
recommended that “the District Court impose the following directive as a Rule
11 sanction upon Mr. Rindahl: if Mr. Rindahl files any new lawsuit in any state
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or federal court in the United States, he must file this opinion and the district
court’s opinion together with his Complaint or any other initial filing.” Docket 8
at 16.
Rule 11(c)(4) states that “[a] sanction imposed under this rule must be
limited to what suffices to deter repetition of the conduct or comparable conduct
by others similar situated. The sanction may include nonmonetary directives
. . . .” Rindahl has repeatedly engaged in misrepresentations to the court and
submitted fabricated evidence to the court in this action and in Civ. 11-4086.
The court has expended significant resources in resolving whether Rindahl
submitted fabricated evidence in this action and in Civ. 11-4086. Future courts
should be aware of Rindahl’s past fraudulent behavior to save time and money
if Rindahl should file another lawsuit. Furthermore, Rindahl does not object to
the nature of the sanctions recommended by Magistrate Judge Simko.
Accordingly, the court adopts Magistrate Judge Simko’s recommended directive
that Rindahl be required to attach a copy of the Report and Recommendation
and a copy of this opinion to any future complaint or initial filing in any state or
federal court within the United States. Accordingly, it is
ORDERED that the Report and Recommendation of Magistrate Judge
Simko (Docket 48) is adopted in all respects.
IT IS FURTHER ORDERED that plaintiff’s objections to the Report and
Recommendation (Dockets 53 and 56) are overruled.
IT IS FURTHER ORDERED that plaintiff’s motion for leave to proceed in
forma pauperis (Docket 2) is denied.
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IT IS FURTHER ORDERED that plaintiff’s complaint (Docket 1) is
dismissed with prejudice as a Rule 11 sanction.
IT IS FURTHER ORDERED that plaintiff’s motion to appoint counsel
(Docket 3), motion for discovery (Docket 4), motion for a temporary restraining
order (Docket 16), motion for a preliminary injunction (Docket 17), motion to
change venue (Docket 23), and motion to amend the complaint to add new
defendants (Docket 35) are denied as moot.
Dated September 29, 2011.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
CHIEF JUDGE
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