Rindahl v. Daugaard et al

Filing 45

ORDER denying as moot 34 Motion to Change Venue; denying as moot 36 Motion to Appoint Counsel ; denying as moot 37 Motion to Compel; adopting 42 Report and Recommendation; overruling 43 Objection to Report and Recommendation.; denying 2 M otion for Leave to Proceed in forma pauperis; denying as moot 3 Motion to Appoint Counsel ; denying as moot 12 Motion for Preliminary Injunction; denying as moot 21 Motion for TRO; denying as moot 23 Motion to Amend/Correct. Plaintiff's complaint is dismissed without prejudice to refiling accompanied by the entire $350 filing fee. Signed by Chief Judge Karen E. Schreier on 9/29/2011. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
RANDY RINDAHL,

)
)
Plaintiff,
)
)
vs.
)
)
DENNIS DAUGAARD, Governor, State of
)
South Dakota;
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MARTY JACKLEY, Attorney General;
)
AARON McGOWAN, State Attorney,
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Minnehaha County;
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BRYAN GOATMAKER, Director of the
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Division Criminal Investigation;
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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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D. YOUNG, Asst. Warden Annex Prison;
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O. SURREAL, Assc. Warden;
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T. PINTO, Assc. Warden;
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C. VAN VERNE, Senior Major;
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T. LINNIWEBER, Security Major;
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M. RODOSKY, Security Capt.;
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J. MILLER, Security Lt.;
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WOODWARD, Section Manager;
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FANTROY, Section Manager;
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DITTMONSON, Section Manager;
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MATSEN, Section Manager;
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WAAGMEESTER, Section Manager;
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SCO PAROLE AGENT McCLOUD;
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LT. LAUSENG;
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SATTULU, Supervisor, DCI;
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LEUNING, DCI;
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T. WOLFGANG, Director of Mental Health;
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J. FALON, Mental Health;
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G. BARSTAND, Mental Health;
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OELSEN, Case Manager (Retired);
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K. VAMERAN, Case Manager/PREA Director; )
OLSON, SCO;
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KLINE, SGT/Coordinator;
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ROTER, LT./Pheasent Land Industries;
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KLINSAUCER, Mental Health (Retired);
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L. HINKLEY, Avera McKennan Hospital;
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VELD, Coordinator Sioux Falls Prison
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System,
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Defendants.
)

Civ. 11-4085

ORDER

Plaintiff, Randy Rindahl, filed a 42 U.S.C. § 1983 action against
defendants alleging that defendants caused various harms to him during his
continued incarceration at the South Dakota State Penitentiary (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 26.
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. This court referred the initial screening to
Magistrate Judge John E. Simko pursuant to 28 U.S.C. § 636(b)(1)(B).
Magistrate Judge Simko recommended that this court dismiss Rindahl’s
complaint without 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). Rindahl objects to the findings made in the Report and
Recommendation. Docket 43. 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
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

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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
actions but does deny him the advantages of proceeding in forma pauperis.”
Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003).

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“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 upon which relief may be granted
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. 104004, Docket 91.

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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.
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. 114086 (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). In addition, Rindahl filed
an action in the Eastern District of Wisconsin, which was transferred to this
jurisdiction, Rindahl v. Daugaard et al., Civ. 11-4082 (D.S.D. 2011), which was
dismissed with prejudice as a Rule 11 sanction because Rindahl prepared and
filed fraudulent documents in the case.
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 and Three

Because Rindahl is a three-strikes litigant, he must show he is in
imminent danger of serious physical injury in order to proceed IFP in this
action. § 1915(g). Magistrate Judge Simko reviewed Rindahl’s complaint and
determined that Rindahl has not met this threshold showing. Rindahl objects to
this determination.

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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.
This imminent danger must be clear at the time the plaintiff files the complaint.
Id. (“[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.”).
While Rindahl alleges various claims against defendants, the heart of all
his claims is his allegation that SDSP staff sexually assaulted him in 2003. In
objection number two, Rindahl disputes Magistrate Judge Simko’s
determination that he has previously litigated these claims.
After reviewing Rindahl’s substantial litigation history, the court agrees
with Magistrate Judge Simko that Rindahl has previously litigated many of
these claims in Rindahl v. Weber et al., Civ. 08-4041 (D.S.D. 2008); Rindahl v.
Reisch et al., Civ. 09-4084 (D.S.D. 2009); and Rindahl v. Reisch et al., Civ. 104156 (D.S.D. 2010). Rindahl does not get endless bites at the same apple; he
cannot allege the same claims here that the court dismissed in prior actions.
Moreover, § 1915(g) prohibits an inmate from seeking a remedy for past
misconduct by prison officials. Thus, Rindahl’s objection number two is
overruled.

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Even if Rindahl had not previously litigated the claims in the above-cited
actions, his claims do not meet the § 1915(g) imminent danger standard. In
objection number three, Rindahl argues that even a lay person would find that
his alleged sexual assault in 2003 constitutes imminent physical injury. But
even if the 2003 incident occurred, it is a single incident from eight years ago
and does not result in an ongoing serious physical injury or a pattern of
misconduct evidencing the likelihood of imminent serious physical injury. Thus,
Rindahl’s objection number three is overruled.
After carefully reviewing Rindahl’s complaint, the court can find no claims
by Rindahl that allege either an ongoing serious physical injury or a pattern of
misconduct evidencing the likelihood of imminent serious physical injury. Thus,
the courts agrees with Magistrate Judge Simko that Rindahl cannot proceed IFP
in this action. Accordingly, it is
ORDERED that the Report and Recommendation of Magistrate Judge
Simko (Docket 42) is adopted in all respects.
IT IS FURTHER ORDERED that plaintiff’s objections to the Report and
Recommendation (Docket 43) are overruled.
IT IS FURTHER ORDERED that plaintiff’s motion for leave to proceed in
forma pauperis (Docket 2) is denied. Plaintiff’s complaint (Docket 1) is dismissed
without prejudice to refiling accompanied by the entire $350 filing fee.
IT IS FURTHER ORDERED that plaintiff’s motion to appoint counsel
(Docket 3), motion for a preliminary injunction (Docket 12), motion for a

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temporary restraining order (Docket 21), motion to amend/correct the
complaint to correct spelling and grammatical errors (Docket 23), motion to
change venue (Docket 34), second motion to appoint counsel (Docket 36), and
motion to compel Magistrate Judge Simko to rule on Rindahl’s motions (Docket
37) are denied as moot.
Dated September 29, 2011.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
CHIEF JUDGE

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