Rindahl, Randy v. Daugaard et al

Filing 44

ORDER denying as moot 39 Motion for Reconsideration ; denying as moot 39 Motion for Recusal; denying as moot 40 Motion to Amend/Correct; denying as moot 42 Motion to Amend/Correct; denying as moot 2 Motion; denying as moot 3 Motion; denyi ng as moot 4 Motion to Appoint Counsel ; denying 6 Motion for Leave to Proceed in forma pauperis; denying as moot 10 Motion; denying as moot 12 Motion to Compel; denying as moot 17 Motion to Compel; denying as moot 17 Motion for Sanctions. The amended complaint is dismissed without prejudice subject to Rindahl's prepayment of the $350 filing fee. Signed by Chief Judge Karen E. Schreier on 9/30/2011. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
RANDY RINDAHL,
Plaintiff,
vs.
DAUGAARD, Governor, State of South
Dakota;
TIM REISCH, Sec. of Corrections, South
Dakota State Penitentiary (SDSP);
D.WEBER, Warden, (SDSP);
D. SLYKHUS, Deputy Warden;
D. YOUNG, Asst. Warden (Jameson
Annex Prison); O. SPURRELL, Assc.
Warden;
T. PONTO, Assc. Warden;
DR. REGIER, SDSP Health Service;
FANTROY, Section Manager;
DITTMONSON, Section Manager;
LINNIWEBER, Security Major;
VAN VORNE, Senior Major;
J. MILLER, Security Lt.
RODOSKY, Security Capt.
LARSON, Correctional Personnel;
ROSHIEM, Sgt.; KAYLA S, Coordinator;
ED LIGHTENBERG, Board of Pardons &
Parole;
WOODWORD, Section Manager;
SGT. JOHNSON, female fired;
J. SPURRELL, Health Care Manager;
MULLIN, Corp.
G. TAYLOR, Section Manager;
DARREN HOLLINGSWORTH, Sec. Dept.
Of Health;.
Defendants.

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Civ. 11-4130

ORDER DENYING IN FORMA
PAUPERIS STATUS AND
DISMISSING CASE WITHOUT
PREJUDICE

BACKGROUND
Plaintiff, Randy Rindahl, is a prisoner at the South Dakota State
Penitentiary (SDSP) in Sioux Falls, South Dakota. Rindahl has filed this pro se

lawsuit pursuant to 42 U.S.C. § 1983, alleging various deprivations of his civil
rights by the above-named defendants. Rindahl initially filed the instant
lawsuit in the Western District of Wisconsin, but Judge Barbara Crabb
transferred the case to this district because she determined the Eastern
District of Wisconsin has no personal jurisdiction over defendants. See Doc.
36. Plaintiff wishes to proceed in forma pauperis. His complaint is “screened”
pursuant to 28 U.S.C. § 1915(e) and 1915A.1

1

28 U.S.C. § 1915(e)(2)(B)(ii) provides:
(2)
Notwithstanding any filing fee, or any portion thereof, that
may have been paid, the court shall dismiss the case at any
time if the court determines that –
(B)
the action or appeal–
(i)
is frivolous or malicious;
(ii)
fails to state a claim on which relief may be granted; or
(iii)
seeks monetary relief against a defendant who is
immune from such relief.
28 U.S.C. § 1915A provides in relevant part:
(a)

Screening.–The Court shall review, before docketing, if feasible or,
in any event, as soon as practicable after docketing, a complaint in
a civil action in which a prisoner seeks redress from a
governmental entity or officer or employee of a governmental entity.

(b)

Grounds for dismissal.–On review, the court shall identify
cognizable claims or dismiss the complaint, or any portion of the
complaint, if the complaint–
(1)
is frivolous, malicious, or fails to state a claim upon
which relief may be granted; or
(2)
seeks monetary relief from a defendant who is immune
from such relief.

2

DISCUSSION
1.

Rindahl’s Litigation History and Whether He Has Sufficiently
Alleged “Imminent Danger” for IFP Status

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.
28 U.S.C. § 1915(g) (emphasis added).
Rindahl is a frequent litigant in the District of South Dakota. He has
been designated as a “three-strike” litigant who is ineligible for in forma
pauperis status in the absence of a sufficient claim of imminent danger of
serious physical harm. Rindahl’s previous claims of imminent danger have
been deemed inadequate or exaggerated.2 Rindahl’s lawsuits that have been
dismissed upon “screening” pursuant to 28 U.S.C. § 1915(d) or
§1915(e)(2)(B)(ii)3 are summarized below:
2

Rindahl v. Reisch, Civ. 10-4004 (D.S.D.) (In forma pauperis status
initially granted but later revoked based on Rindahl’s misrepresentations to the
court; case dismissed for failure to state a claim upon which relief may be
granted pursuant to 28 U.S.C. §1915(e)); Rindahl v. Reisch, 10-4156 (D.S.D.)
(In forma pauperis status denied for failure to sufficiently allege imminent
danger of serious physical harm).
3

The former 28 U.S.C.§ 1915(d) became 28 U.S.C. § 1915(e) when the
PLRA became effective in 1996. Atkinson v. Bohn, 91 F.3d 1127, 1128 (8th Cir.
1996).
3

1.

Rindahl v. Class, Civ. 95-4207 (D.S.D.) Rindahl claimed the DOC
failed to adequately enforce its own policies. Judge Jones dismissed
the claim as frivolous pursuant to 28 U.S.C. § 1915(d). Strike One.

2.

Rindahl v. Class, Civ. 96-4116 (D.S.D.) Rindahl claimed
unacceptable conditions in the SHU (special housing unit). Judge
Jones dismissed the claim for failure to state a claim upon which
relief may be granted pursuant to 28 U.S.C. § 1915(d). Strike Two.

3.

Rindahl v. Class, Civ. 96-4117 (D.S.D.) Rindahl claimed false
disciplinary reports were filed against him in retaliation for filing a
religious rights lawsuit. Judge Jones dismissed the claim for failure
to state a claim upon which relief may be granted pursuant to 28
U.S.C. § 1915(d). Strike Three.

4.

Rindahl v. Webber, Civ. 08-4041 (D.S.D.) Rindahl claimed he was
raped by a prison guard in 2003 and that the incident was never
properly investigated by prison personnel. Judge Battey initially
denied IFP status because Rindahl failed to sufficiently allege
imminent danger. Judge Battey eventually allowed Rindahl to
proceed IFP, but nevertheless ultimately dismissed the case for
failure to state a claim upon which relief may be granted pursuant
to 28 U.S.C. §1915(e)(2)(B)(ii). Strike Four. The Eighth Circuit
summarily affirmed Judge Battey’s decision.

5.

Rindahl v. Reisch, Civ. 10-4004 (D.S.D.) Rindahl claimed deliberate
indifference to a serious medical need (inattention to prison doctor’s
recommendation that surgery may be necessary on his cervical
spine). Rindahl was initially granted IFP status based on his claims
of imminent danger. His IFP status was revoked based upon
Rindahl’s misrepresentations to the court about the course of
medical care given by prison medical personnel. Rindahl’s case was
dismissed for failure to state a claim upon which relief may be
granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Strike Five. The
Eighth Circuit denied IFP status on appeal.4

4

Judge Crocker’s Order dated May 9, 2011 (Doc. 19), which cites Turley
v. Gaetz, 625 F.3d 1005 (7th Cir. 2010) and calculates Rindahl’s strike count
as two is noted. Turley is not binding precedent in the Eighth Circuit.
Nevertheless, under Turley all of Rindahl’s cases cited above as strikes remain
strikes because the cases were dismissed in their entirety and none of the
4

In addition to the above cases that resulted in “strikes” for purposes of
the PLRA, the following cases have been dismissed because Rindahl failed to
prepay the filing fee or failed to adequately allege imminent danger of serious
physical harm (which would have allowed him to proceed in the absence of
prepayment, despite his “three-strike” status) pursuant to 28 U.S.C. § 1915(g):
6.

Rindahl v. Weber, Civ. 09-4084 (D.S.D.) Rindahl claimed deliberate
indifference to a serious medical need. He alleged inadequate
recovery time related to a surgical procedure performed in 2007.
Judge Piersol denied IFP status because Rindahl failed to
sufficiently allege imminent danger of serious physical harm.

7.

Rindahl v. Reisch, Civ. 09-4085 (D.S.D.) Rindahl claimed Warden
Weber and others did not properly follow prison policy in
investigating a sexual assault allegedly perpetrated upon Rindahl at
some unspecified time in the past. Judge Piersol denied IFP status
because Rindahl failed to sufficiently allege imminent danger of
serious physical harm. Judge Piersol also noted the claims were
duplicative of those which were then pending in Civ. 08-4041.

8.

Rindahl v. Reisch, Civ. 10-4156 (D.S.D.) Rindahl alleged previous
sexual assaults that were perpetrated upon him at the SDSP were
not appropriately investigated by prison personnel. Judge Schreier
noted the complaint was “nearly illegible” but nevertheless denied
IFP status and dismissed the complaint because plaintiff failed to
sufficiently allege imminent danger of serious physical harm. The
Eighth Circuit denied Rindahl’s application for IFP status on appeal
and dismissed the case for failure to prosecute.

“The Prison Litigation Reform Act of 1996 enacted what is commonly
referred to as the 'three strikes' provision, codified at 28 U.S.C. § 1915(g). This
statute provides that an inmate who has had three prior actions or appeals

claims contained within them proceeded to adjudication on the merits.
5

dismissed as frivolous, malicious, or for failure to state a claim may not
proceed in a civil action in forma pauperis 'unless the prisoner is under
imminent danger of serious physical injury.' The statute's bar 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). Further, a complaint that makes "no allegation of
ongoing danger, other than conclusory assertions that defendants [are] trying
to kill [the plaintiff] by forcing him to work in extreme conditions despite his
blood pressure condition" is insufficient to invoke the imminent danger
exception. Id. Instead, specific allegations of ongoing serious physical injury or
a pattern of misconduct evidencing the likelihood of imminent serious physical
injury are necessary. Id.
An otherwise ineligible prisoner may proceed IFP only if he is in
imminent danger “at the time of filing.” Ashley v. Dilworth, 147 F.3d 715, 717
(8th Cir. 1998) (emphasis in original). Furthermore, “verbal threats and name
calling usually are not actionable under § 1983.” McDowell v. Jones, 990 F.2d
433, 434 (8th Cir. 1993). See also Smith v. Copeland, 892 F. Supp.1218, 1230
(E.D. Mo. 1995) (gestures and abusive language alone are not actionable under
§ 1983); Ellis v. Meade, 887 F. Supp. 324, 329 (D. Me. 1995) (threatening
language by guards does not generally violate prisoners' constitutional rights).
Because verbal threats and abusive language are not actionable under § 1983,

6

they likewise may not form the basis of an imminent danger exception to the
"three strike" rule.
It is with these standards in mind that Rindahl's complaint in this case
has been reviewed to determine whether he is eligible for in forma pauperis
status under the imminent danger exception of the "three strike" rule. Because
Rindahl is a three strike litigant and this complaint does not meet the
imminent danger exception, his amended complaint5 will be dismissed.
Rindahl’s claims in this pending suit arise from his assertion that he
has been wrongfully categorized as a sex offender, and was therefore required
to submit a DNA sample to prison authorities. Rindahl theorizes that because
he was wrongfully required to submit a DNA sample, he has mistakenly been
labeled as a sex offender and therefore been subjected to verbal harassment
from prison guards and put at risk of harm from his fellow inmates.
Rindahl alleges that in March 2010, Sgt. Rosheim approached him
about submitting a DNA sample. Rindahl resisted submitting a DNA sample
because he believed that under South Dakota law, only sex offenders are

5

Rindahl filed his complaint on February 15, 2011. He filed an amended
complaint on March 14, 2011. Rindahl filed further amendments on
September 29, 2011. The amended complaint is considered for screening
purposes.
7

required to give DNA samples.6 Despite Rindahl’s resistance, he was required
to give the DNA sample.
Rindahl asserts that after the DNA testing, prison personnel made
offensive remarks about him and labeled him a child molester. Rindahl further
asserts other (HIV positive) inmates have retaliated against him by “sliming”
him with their bodily fluids, all as a result of the insinuation that he is a sex
offender. Rindahl insists the actions of the other inmates have been “enlisted”
by prison personnel.
The requirements for DNA testing of persons convicted of felonies in
South Dakota is found in South Dakota Code Chapter 23-5A. It provides in
part:
23-5A-1. Definition of Terms
Terms used in this chapter mean:
***
(8) “Qualifying offense,” any felony offense under the laws of this
state, a crime of violence as defined in § 22-1-2,7 or a violation of
chapter 22-22.8
23-5A-4. Persons required to provide DNA sample–
Retroactivity of requirement

6

Rindahl explains that his 1989 convictions are not for sex offenses but
are for manslaughter and aggravated assault. Amended complaint (Doc. 10)
¶ 31.
7

Manslaughter and aggravated assault are both crimes of violence
pursuant to SDCL 22-1-2(9).
8

Chapter 22-22 is devoted to sex offenses.
8

Any person convicted or adjudicated delinquent for a qualifying
offense on or after July 1, 2003, shall provide a DNA sample upon
intake or as determined by the supervising agency. A person who
has been convicted or adjudicated delinquent for a qualifying
offense before July 1, 2003, and who is still incarcerated or under
supervision as of July 1, 2003, shall provide a DNA sample as
determined by the supervising agency.
Because Rindahl was convicted of “qualifying offenses” for which he
remained incarcerated as of July 1, 2003, he was required to submit a DNA
sample. That he was required to submit a DNA sample, therefore, did not
create the false impression that Rindahl was convicted of a sex offense.
Likewise, Rindahl alleges prison personnel have called him names such
as “cho mo” (child molester) causing Rindahl to fear for his safety. "[V]erbal
threats and name calling usually are not actionable under § 1983.” McDowell
v. Jones, 990 F.2d 433, 434 (8th Cir. 1993). See also Smith v. Copeland, 892 F.
Supp. 1218, 1230 (E.D. Mo. 1995) (gestures and abusive language alone are
not actionable under § 1983); Ellis v. Meade, 887 F. Supp. 324, 329 (D. Me.
1995) (threatening language by guards does not generally violate prisoners'
constitutional rights). Because verbal threats and abusive language are not
actionable under § 1983, they likewise may not form the basis of an imminent
danger exception to the "three strike" rule. Because Rindahl has failed to
sufficiently allege imminent danger of serious physical harm, his motion to
proceed in forma pauperis will be DENIED and his complaint will be dismissed
without prejudice.

9

2.

Rule 11 Sanctions.

Rindahl claims the allegation he is a sex offender has also resulted in
one or more HIV positive inmates “sliming” him with their bodily fluids.
Rindahl supports this assertion with his own affidavit (Doc. 2-1 at 3-4).
Specifically, Rindahl asserts Corp. Mullner “ordered” inmates with HIV to toss
their human fluids on Rindahl in retaliation for Rindahl’s filing grievances
against several correctional officers relating to his protest about being required
to give a DNA sample. Rindahl also asserts the order for “sliming” was in
retaliation for an earlier lawsuit (Civ. 08-4041) in which Rindahl claimed he
was sexually assaulted at the hands of a correctional officer. To bolster his
claim, Rindahl filed a document in the Western District of Wisconsin that
purported to be a response from Warden Weber to Rindahl’s “grievace” [sic].
The document is found at Doc. 2-1 at 13. It shares all of the characteristics of
the documents which Magistrate Judge Simko found to be, by clear and
convincing evidence, fraudulent in Civ. 11-4082.9
Two days after Magistrate Judge Simko held the hearing on August 9 to
determine whether Rindahl had filed fraudulent documents in Civ. 11-4082
and 11-4086, Rindahl wrote to the Clerk of Courts for the Western District of

9

Magistrate Judge Simko’s findings regarding the fraudulent documents
in Civ. 11-4082 were made after notice and a show cause hearing that was held
on August 9, 2011. Judge Schreier adopted the Report and Recommendation
after overruling Rindahl’s objections on September 29, 2011.
10

Wisconsin requesting that Doc. 2-1, p. 13 be removed from the Wisconsin
docket. See Doc. 30 in this case. The Clerk refused to remove the document
(See Doc. 31). Rindahl wrote to the Clerk again, insisting this time that the
document is “not relevant” and again requesting it be removed from the file.
See Doc. 34.10
The document in question in this case purports to be a response from
Warden Weber to Rindahl’s grievance that claimed another inmate tossed HIV
infected waste into Rindahl’s cell at the direction of correctional officers. The
response appears to be on DOC stationery and is purportedly signed by
Warden Weber. The response, however, is not in the usual format of the
Warden’s administrative remedy response,11 nor is the type font of the printer
the same. In fact, the font used is the very same as the font of Rindahl’s
amended complaint. Rindahl represented to the court, as he did in the

10

On August 29, 2011, Rindahl also requested a “change of venue” to the
Western District of Wisconsin. See Doc. 35. He explained he had filed a
misconduct complaint against Magistrate Judge Simko and Judge Piersol in
connection with Civ. Nos. 11-4082 and 11-4085 in the District of South
Dakota. Rindahl further explained he is unable to obtain a “conflict free
hearing within the state of South Dakota.” Id. at p.3.
11

An example of Weber’s normal administrative remedy response is
found at Doc. 18-1 at 1. It contains a reference number, reference code, and id
number underneath a box which contains the words ADMINISTRATIVE REMEDY
RESPONSE in bold, small cap letters. Underneath the Warden’s signature at the
bottom left is a list of people who receive copies of the administrative remedy:
administrative remedy file, unit file, investigator, and central records if
disciplinary or classification. The document at issue here contains none of
these usual traits.
11

previous cases, that he obtained the document from the “coordinator of West
Hall from the institutional folder which is held within the case manager’s office
and central records.” See Doc. 16. In the purported response, Warden Weber
agreed with Rindahl’s assessment that the “inmate in guestion [sic] has HIV.”
In describing the alleged misconduct of the prison personnel, Warden Weber
used language containing grammatical errors and misspelled words .12
Fed. R. Civ. P. 11 provides in relevant part:
(b) Representations to the Court. By presenting to the court a
pleading, written motion, or other paper–whether by signing, filing,
submitting, or later advocating it–an attorney or unrepresented
party certifies that to the best of the person’s knowledge,
information and belief, formed after an inquiry reasonable under
the circumstances:
(1) it is not being presented for any improper purpose, such as to
harass, cause unnecessary delay, or needlessly increase the
cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by
existing law or by a nonfrivolous argument for extending, modifying,
or reversing the existing law or establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so
identified, will likely have evidentiary support after a reasonable
opportunity for investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or,
if specifically so identified, are reasonably based on belief or a lack
of information.
(c) Sanctions.
(1) In general. If, after notice and a reasonable opportunity to respond,
the court determines that Rule 11(b) has been violated, the court
may impose an appropriate sanction on any attorney, law firm, or
party that violated the rule or is responsible for the violation. Absent
exceptional circumstances, a law firm must be held jointly

12

For example: “grievace” “aginst” “guestion” “disciplainary.”
12

responsible for a violation committed by its partner, associate, or
employee.
This fact-dependent legal standard mandated by Rule 11 is an issue for
the court to decide. Pope v. Fed. Express Corp., 974 F.2d 982, 984 (8th Cir.
1992). If the court finds a litigant has manufactured evidence and/or that
perjured testimony has been introduced in an effort to enhance the case
through fraudulent conduct, dismissal is an appropriate sanction. Id. “When a
litigant’s conduct abuses the judicial process, the Supreme Court has
recognized dismissal of a lawsuit to be a remedy within the inherent power of
the court.” Id. (citing Chambers v. NASCO, Inc., 501 U.S. 32, 45 (1991)). The
court also possesses inherent authority to impose monetary sanctions if it
finds a party has abused the judicial process. Harlan v. Lewis, 982 F.2d 1255,
1259 (8th Cir. 1993).
Considering the potential severe and punitive nature of Rule 11
sanctions, a clear and convincing burden of proof is appropriate. In re
Coordinated Pretrial Proceedings in Antibiotic Antitrust Actions, 538 F.2d 180,
195 (8th Cir. 1976) (a finding of fraud on the court, including fabrication of
evidence, “must be supported by clear, unequivocal and convincing
evidence.”).
The court finds by clear and convincing evidence that Doc 2-1, p. 13 is a
fraudulent document. This finding is based upon the evidence that was
received during the show cause hearing on August 9, 2011, in Civ. 11-4082,
13

the common characteristics Doc. 2-1 p. 13 shares with the fraudulent
documents in that case, and Rindahl’s conduct (specifically his failed attempt
to remove the document from the Wisconsin court file) subsequent to
Magistrate Judge Simko’s determination that Rindahl falsified documents in
the companion case.
Because the content of the document goes to the heart of Rindahl’s
claims, these representations were made in an effort to mislead the court and
enhance Rindahl’s case. Fraud upon the court is an abuse of the judicial
process. Dismissal with prejudice is an appropriate Rule 11 sanction. Pope,
974 F.2d at 984. Because sanctions can only be imposed under Rule 11(c),
however, after the court has given notice and reasonable opportunity to
respond, the court will not impose sanctions here.
CONCLUSION
Rindahl has failed to sufficiently allege imminent danger of serious
physical harm. For the reasons explained above, the court finds by clear and
convincing evidence that Rindahl has perpetrated a fraud upon the court by
filing a forged document (Doc. 2-1 at 13), but the court will not impose Rule 11
sanctions. Therefore, it is
ORDERED Rindahl’s motion for in forma pauperis status is DENIED;
IT IS FURTHER ORDERED that the amended complaint is DISMISSED
without prejudice subject to Rindahl’s prepayment of the $350 filing fee.

14

IT IS FURTHER ORDERED that all pending motions are DENIED as
moot.
Dated September 30, 2011
BY THE COURT:

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

15