Rindahl v. Daugaard et al

Filing 46

ORDER adopting 35 Report and Recommendation; overruling 38 Objection to Report and Recommendation.; overruling 40 Objection to Report and Recommendation.; denying 2 Motion for Leave to Proceed in forma pauperis; denying as moot 4 Motion to Appoint Counsel ; denying as moot 6 Motion for TRO; denying as moot 20 Motion to Change Venue. Plaintiff's complaint is dismissed without prejudice and may be refiled if 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;
)
TIM REISCH, Sec. of Corrections;
)
D. WEBER, Warden;
)
DARYL SLYKHUIS, Deputy Warden;
)
D. YOUNG, Asst. Warden Annex Prison; )
O. SPURRELL, Assc. Warden;
)
T. PONTO, Assc. Warden;
)
C. VAN VORNE, Senior Major;
)
T. LINNIWEBER, Security Major;
)
M. RODOSKY, Security Capt.;
)
J. MILLER, Security Lt.;
)
DITTMONSON, Section Manager;
)
J. SPURRELL, Health Care Manager;
)
SGT. WYNIA;
)
CPL. BROWN;
)
UNKNOWN Health Service Worker; and )
G. TAYLOR, Section Manager,
)
)
Defendants.
)

Civ. 11-4086

ORDER

Plaintiff, Randy Rindahl, filed a 42 U.S.C. § 1983 action against
defendants alleging that various 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 this District of South
Dakota. Docket 19. 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 imminent danger of serious harm as
required by 28 U.S.C. § 1915(g). Rindahl objects to the findings in the Report
and Recommendation. Dockets 38, 40.1 Defendants have not objected to the
Report and Recommendation but have responded to Rindahl’s objections.
Docket 39.
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
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

1

Docket 38 contains Rindahl’s handwritten objections. Docket 40
contains substantially similar objections in typewritten format. Rindahl has
submitted only one memorandum in support of his objections, Docket 41, and
a number of declarations. Dockets 42, 43, 44, 45.
2

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).
“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.
3

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.
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

4

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. 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
was unable 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. 114085 (D.S.D. 2011); Rindahl v. Daugaard et al., Civ. 11-4130 (D.S.D. 2011); and

5

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.

Objections Number Two, Three, and Four

Because Rindahl is a three-strikes litigant, he must show a threat of
imminent danger 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 makes three objections to the Report and
Recommendation’s analysis of his IFP status.
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

6

threatens continuing or future injury, not on whether the inmate deserves a
remedy for past misconduct.”).
“Generally, mere verbal threats made by a state-actor do not constitute a
§ 1983 claim.” King v. Olmsted Cnty., 117 F.3d 1065, 1067 (8th Cir. 1997) (citing
Hopson v. Fredericksen, 961 F.2d 1374, 1378 (8th Cir. 1992)). In order for a
threat to be “an actionable constitutional violation,” the threat must be “so
brutal or wantonly cruel as to shock the conscience,” or “the threat exerts
coercive pressure on the plaintiff and the plaintiff suffers the deprivation of a
constitutional right.” Id. (internal citations omitted).
For example, gestures and abusive language alone are not actionable
under § 1983. Smith v. Copeland, 892 F. Supp. 1218, 1230 (E.D. Mo. 1995)
(citing McDowell v. Jones, 990 F.2d 433, 434 (8th Cir. 1993)). Threatening
language from prison officials also does not generally violate a prisoner’s rights.
Ellis v. Meade, 887 F. Supp. 324, 329 (D. Me. 1995); see also Coyle v. Hughs,
436 F. Supp. 591, 593 (W.D. Okla.1977) (“Mere threatening language and
gestures of a custodial officer do not . . . amount to constitutional violations.”);
Bolden v. Mandel, 385 F. Supp. 761, 764 (D. Md. 1974) (holding verbal abuse
and threats of bodily harm not actionable under § 1983; “Were a prisoner . . .
entitled to a jury trial each time that he was threatened with violence by a prison
guard, even though no injury resulted, the federal courts would be more
burdened than ever with trials of prisoner suits . . . .”). But see Burton v.
Livingston, 791 F.2d 97, 99, 100-01 (8th Cir. 1986) (reasoning that a prison

7

guard’s threatening words, without more, do not invade a federally protected
right, but such words do so when a guard “terrorized . . . [the prisoner] with
threats of death”).
In his second objection, Rindahl disputes the Report and
Recommendation’s analysis of his claims. Rindahl claims that he has alleged a
pattern of misconduct by defendants that existed from his alleged sexual assault
in 2003. But the court only looks to potential injuries that are pending at the
time Rindahl filed his complaint. Ashley, 147 F.3d at 717.
Rindahl alleges that when he approached defendants on May 3, 2011, to
discuss the 2003 sexual assault incident, Dittmonson and Ponto made death
threats2 against him. Dittmonson allegedly became “irate and lost control
stating: ‘What are you trying to do to my ten year . . . .’ ” Docket 1 at ¶¶ 21-23.
These same essential facts support Rindahl’s First Amendment retaliation, Fifth
Amendment due process, Eighth Amendment excessive force, and Fourteenth
Amendment equal protection claims.
The threats by Dittmonson and Ponto, as alleged by Rindahl, do not rise to
an actionable level for purposes of § 1983 because threatening language, without
a specific threat of bodily injury that causes terror to the prisoner, is insufficient
to sustain a § 1983 claim. See King, 117 F.3d at 106. Moreover, these threats

2

The death threats allegedly include Wynia stating “someone should
have him murdered,” to which Brown responded “did anyone hear that” on
May 3, 2011. Docket 1-1 at 24. On May 8, 2011, Brown allegedly stated to
inmate Fred Sealey, “your [sic] going to end up dead,” in reference to Rindahl.
Docket 1-1 at 24.
8

were isolated incidents and Rindahl has not shown that the threats constitute
an ongoing serious physical injury or a pattern of misconduct involving death
threats. See Martin, 319 F.3d at 1080. Thus, Rindahl’s objection number two is
without merit.
Rindahl further contends that Dittmonson struck him with a closed fist,
which caused him to fall to the ground. Docket 1 at ¶ 23. Rindahl claims that he
received insufficient medical treatment after being struck by Dittmonson and
that defendants failed to properly investigate the incident. Docket 1 at ¶¶ 25-30.
In his objection number four, Rindahl claims that Magistrate Judge Simko did
not appropriately discuss defendants’ failure to investigate his claim. The
evidence submitted by Rindahl, however, directly contradicts Rindahl’s objection
number four. Rindahl filed an administrative remedy request to Weber. Weber,
in reviewing this administrative remedy request, questioned Wynia and Brown
about the incident. Docket 1-1 at 4. According to Weber, Wynia and Brown made
no threats against Rindahl and never used the word “murder” toward Rindahl.
Docket 1-1 at 4. The Report and Recommendation reviewed all of Rindahl’s
filings in this action and appropriately considered defendants’ responses to
Rindahl’s administrative remedy request.
Regarding the alleged assault by Dittmonson, the only evidence to support
Rindahl’s claims are his declarations, Docket 1-1 at 22-28, inmate Richard
Masterson’s declaration, Docket 1-1 at 28, and a nursing assessment dated
December 16, 2010 (seven months after the alleged assault), stating that the

9

right side of Rindahl’s head was swollen. Docket 1-1 at 20. Without evidence of
an assault, Rindahl’s claims that Dittmonson assaulted him are conclusory.
Furthermore, a single assault does not show an ongoing serious physical injury
or a pattern of misconduct that would indicate Rindahl is in imminent danger of
serious physical injury. Thus, objection number four is overruled.
In objection number three, Rindahl argues that the burden of proof on his
Eighth Amendment claim is less stringent than the standard articulated in the
Report and Recommendation. Rindahl’s objection is unfounded. The Report and
Recommendation never discussed an Eighth Amendment burden of proof. Even
if Rindahl is correct about his burden of proof, he has still failed to show either
that there was an ongoing injury or a pattern of misconduct. Rindahl’s objection
number three is overruled.
After completing a de novo review of Rindahl’s IFP status, the court agrees
with Magistrate Judge Simko’s recommendation that Rindahl cannot proceed IFP
in this action and, thus, adopts the Report and Recommendation’s analysis of
Rindahl’s IFP status. Accordingly, Rindahl’s objections number two, three, and
four are overruled.
II.

Rule 11
After raising concerns about evidence in a companion case, Rindahl v.

Daugaard et al., Civ. 11-4082, Magistrate Judge Simko held a show cause
hearing on August 9, 2011, to determine if evidence in Civ. 11-4082 had been
fabricated. During that hearing, Magistrate Judge Simko raised concerns about

10

Masterson’s affidavit that Rindahl submitted in this case. Defendants did not
contest the authenticity of Masterson’s affidavit.
The Report and Recommendation found that the notary’s signature line,
“my commission expires,” and “place notary here” portions of the Masterson
affidavit were hand-drawn. Magistrate Judge Simko further found that Rindahl’s
signature on Masterson’s affidavit was erased, Rindahl’s initials written in ink
were eliminated with “white out,” and Masterson’s name was signed in
handwriting similar to Rindahl’s distinctive handwriting. Because defendants did
not contest the Masterson affidavit, Magistrate Judge Simko did not impose Rule
11 sanctions but retained “grave concerns” about the authenticity of Masterson’s
affidavit and recommended that the Clerk of Courts maintain the original
documents in this file.
While Rindahl filed a “brief in support of memorandum of law to Judge
Simko’s rule 11 sanctions,” Docket 41, this filing contests the August 9, 2011,
evidentiary hearing for documents in Civ. 11-4082 and does not address the
Masterson affidavit. Rindahl’s brief contains no objections pertinent to this
action. After conducting a de novo review of the Report and Recommendation’s
Rule 11 analysis, the court agrees that the Masterson affidavit was fabricated.
The court also agrees that the Clerk of Courts must maintain the original
documents in this action for review by the appellate court if necessary.
Accordingly, it is

11

ORDERED that the Report and Recommendation of Magistrate Judge
Simko (Docket 35) is accepted in all respects.
IT IS FURTHER ORDERED that plaintiff’s objections to the Report and
Recommendation (Dockets 38 and 40) 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 and may be refiled if accompanied by the entire $350 filing fee.
IT IS FURTHER ORDERED that plaintiff’s motion to appoint counsel
(Docket 4), motion for temporary restraining order (Docket 6), and motion to
change venue (Docket 20) are denied as moot.
Dated September 29, 2011.
BY THE COURT:

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

12