Rindahl, Randy v. Pristen, J. et al
Filing
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OPINION AND ORDER DENYING IN FORMA PAUPERIS STATUS AND DISMISSING COMPLAINT WITHOUT PREJUDICE denying 20 Motion; denying 20 Motion for Leave to Proceed in forma pauperis; denying as moot 2 Motion; denying 3 Motion for Leave to Proceed in forma pauperis; denying as moot 5 Motion to Appoint Counsel; denying as moot 6 Motion for Joinder. Signed by U.S. District Judge Roberto A. Lange on 10/23/2014. (LH)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
RANDY RINDAHL,
Plaintiff,
vs.
1. PRISTEN, United States Department
of Justice Deputy Chief, Washington,
D.C., et aI.,
Defendants.
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CIV 13-4078-RAL
OPINION AND ORDER
DENYING IN FORMA
PAUPERIS STATUS AND
DISMISSING COMPLAINT
WITHOUT PREJUDICE
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I. INTRODUCTION
Plaintiff Randy Rindahl ("Rindahl") filed a Complaint, Doc. 1, under 42 U.S.c. § 1983
against numerous defendants including a number ofjudges from the United States District Court
for the District of South Dakota, judges from the United States Court of Appeals for the Eighth
Circuit, members of the Clerk of Court's office from the District of South Dakota and the Eighth
Circuit, United States Department of Justice officials, and South Dakota state officials. Rindahl,
as he has done in the past, filed this action originally in the United States District Court for the
Western District of Wisconsin. That court transferred the case to the District of South Dakota.
Doc. 15. Rindahl has filed two motions for leave to proceed in forma pauperis, Doc. 3, Doc. 20.
For the reasons stated below, Rindahl's motions for leave to proceed in forma pauperis are denied
and his Complaint is dismissed without prejudice to refiling once he has paid the filing fee.
II. BACKGROUND
Rindahl is an inmate in the South Dakota state prison system who has an extensive history
of § 1983 litigation in this District. This Court previously noted that Rindahl is a "frequent" filer
who 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 v.
Daugaard et a!., CIY-11-4130-KES, Doc. 44 at 3. In fact, Rindahl has more than "three strikes"
in that this Court has dismissed five § 1983 Complaints filed by Rindahl in their entirety at the in
forma pauperis screening stage.
Rindahl v. Daugaard, CIY-11-4086-KES, Doc. 46 at 4-5
(outlining Rindahl's history of filing and discussing five complaints that he filed which were
dismissed either as frivolous or for failing to state a claim upon which relief could be granted); see
also Rindahl v. Class et a!., CIY-95-4207-181, Doc. 5, Doc. 6 (dismissing case under older version
of28 U.S.c. § 1915 which stated that the court "may dismiss the case if the allegation of poverty
is untrue, or if satisfied that the action is frivolous or malicious"); Rindahl v. Class et a!., CIY-96
4116-181, Doc. 6, Doc. 7 (dismissing complaint under older version of28 U.S.c. § 1915 which
stated that the court "may dismiss the case if the allegation of poverty is untrue, or if satisfied that
the action is frivolous or malicious"); Rindahl v. Class et a!., CIY-96-4117-181, Doc. 5, Doc. 6
(dismissing complaint under older version of28 U.S.c. § 1915 which stated that the court "may
dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or
malicious"); Rindahl v. Webber, et a!., CIY-08-4041-KES, Doc. 29, Doc. 58, Doc. 152 (revoking
order denying in forma pauperis status, granting in forma pauperis status, and dismissing
complaint for failing "to state a claim upon which relief may be granted"); Rindahl v. Reisch et a!.,
CIY-I 0-4004-KES, Doc. 84 (adopting Report and Recommendation recommending that Rindahl's
complaint be dismissed for failing to state a claim upon which relief may be granted). In addition
to those five cases, this Court has dismissed at least seven more cases Rindahl filed because he did
not prepay the filing fee and he was not entitled to in forma pauperis status because he had at least
three previous strikes. See Rindahl v. Webber et a!., CIY-09-4094-LLP, Doc. 7; Rindahl v. Reisch
et a!., CIY-09-4085-LLP, Doc. 17; Rindahl v. Reisch et a!., CIY-I 0-4156-KES, Doc. 10; Rindahl
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v. Daugaard et aI., CIY-11-4085-KES, Doc. 45; Rindahl v. Daugaard et aI., CIY-11-4086-KES,
Doc. 46; Rindahl v. Daugaard et aI., CIY-II-4130-KES, Doc. 44; Rindahl v. State of South
Dakota, et aI., CIY-11-4131-KES, Doc. 34.\
Rindahl also has a history of committing fraud upon this Court. In CIY-11-4130-KES, the
Honorable Karen E. Schreier found by clear and convincing evidence that Rindahl manufactured
and filed a fraudulent document that purported to be a response signed by the Warden at the
institution in which Rindahl was housed. CIY-II-4130-KES, Doc. 44 at 11-13. Judge Schreier
chose not to dismiss the Complaint under Rule 11 of the Federal Rules of Civil Procedure, opting
instead to deny Rindahl in forma pauperis status and dismiss his Complaint without prejudice for
failing to pay the filing fee. CIY-II-4130-KES, Doc. 44 at 14-15. Rindahl next filed fraudulent
documents in Rindahl v. Daugaard et aI., CIY-11-4082-KES. In that case, however, this Court
dismissed Rindahl's Complaint with prejudice as a sanction under Rule 11 for committing fraud
upon this Court by manufacturing and filing three fabricated documents. CIY-11-4082-KES, Doc.
58 at 12-15. This Court ordered further sanctions as well:
[I]f Mr. Rindahl files any new lawsuit in any state 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. []
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[ly] situation. 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
This Opinion and Order will refer to the cases in short citations by referring only to the
case numbers.
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action and in Civ. 11-4086. Future courts should be aware of
Rindahl's past fraudulent behavior and save time and money if
Rindahl should file another lawsuit. . .. 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.
CIY-11-4082-KES, Doc. 58 at 14. Rindahl did not file, along with his Complaint in this case, this
Court's Order in CIY-11-4082-KES as he was so directed. Thus, Rindahl's current filing was
done in violation of this Court's previous Order.
III. DISCUSSION
The Prison Litigation Reform Act states:
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 is
frivolous, malicious, or fails to state a claim upon which reliefmay
be granted, unless the prisoner is under imminent danger ofserious
physical injury.
28 U.S.c. § 1915(g). Section 1915(g) is commonly known as the "three strikes" provision and
while it does not preclude an inmate from filing additional actions, it does deny him the benefit
of proceeding in forma pauperis. Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003). To
establish that the inmate is "under imminent danger of serious physical injury," the inmate must
make "specific fact allegations of ongoing serious physical injury, or of a pattern of misconduct
evidencing a likelihood of imminent serious physical injury." ld.
A. Number of Strikes and the Western District of Wisconsin Order
Rindahl argues that this Court has mischaracterized his litigation history in the past and that
he does not yet have three strikes. Doc. 1 at 20. Rindahl derives this argument in large part from
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an Order that was entered in two of his previous cases-ClY-II-4130-KES, and ClY-II-413
KES-by a magistrate judge of the United States District Court for the Western District of
Wisconsin (the "W.O. Wisconsin Order"). Rindahl originated these cases in the Western District
of Wisconsin and the W.O. Wisconsin Order, docketed at Doc. 19 in each case, was entered before
these cases were transferred to the District of South Dakota. The W.O. Wisconsin Order, based
on the magistrate judge's review of Rindahl's litigation history in the District of South Dakota,
concluded that Rindahl had only four strikes-in cases ClY-95-4207-JBJ, CIY-96-4116-JBJ, ClY96-4117-JBJ, and CIY-I0-4004-KES-and granted Rindahl in forma pauperis status. W.O.
Wisconsin Order at 2. The W.O. Wisconsin Order observed that:
"a strike is incurred under § 1915(g) when an inmate's case is
dismissed in its entirety based on grounds listed in § 1915(g),"
such as failure to state a claim upon which relief can be granted,
rather than when only one claim out of several is dismissed under
§ 1915(g). Turley v. Gaetz, 625 F.3d 1005, 1012 (7th Cir. 2010).
Under this rule, [Rindahl's] strikes in case nos. Civ. 96-4117 and
Civ. 10-4004-KES remain valid, but courts in this circuit should
not recognize the strikes in the two other cases [Nos. Civ. 95-4207
JBJ and Civ. 96-4116-JBJ] because only some of [Rindahl's]
claims in those cases were dismissed under § 1915(g).
W.O. Wisconsin Order at 2 (emphasis added).
The Western District of Wisconsin appeared to believe that this Court in ClY-95-4207-JBJ
and CIY-96-4117-JBJ dismissed only some "claims" but did not dismiss the entire "case" at the
screening stage. Therefore, the Western District of Wisconsin did not count those dismissals as
strikes. W.O. Wisconsin Order at 2. Because the Western District of Wisconsin discovered only
four strikes at the outset, and then concluded that two of those strikes were not to be counted, the
Western District of Wisconsin determined that Rindahl had only two strikes and could proceed in
forma pauperis. W.O. Wisconsin Order at 2.
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Rindahl and the Western District of Wisconsin incorrectly calculated the number ofstrikes
that Rindahl had incurred and incorrectly determined that Rindahl may proceed in forma pauperis
for two reasons. First, the Western District of Wisconsin overlooked a case that was screened at
the in forma pauperis stage when that court initially determined that Rindahl had four strikes
against him. In reality, Rindahl had five strikes at that time. The Western District of Wisconsin
noted that this Court previously had assessed Rindahl with four strikes in cases CIY-95-4207-JBJ,
CIY-96-4116-JBJ, CIY-96-4117-JBJ, and CIY-I 0-4004-KES. W.O. Wisconsin Order at 2. But,
in CIY-08-4041-RHBIKES, this Court, through the Honorable Richard H. Battey, assessed a fifth
strike against Rindahl. Judge Battey granted Rindahl in forma pauperis status after he alleged that
he was under imminent danger of serious bodily harm, screened his Complaint, and dismissed it
in its entirety for failing to state a claim upon which relief can be granted. Doc. 29 at 3-5. This
case was not mentioned and appears to have been overlooked by the Western District of
Wisconsin. Thus, even if the Western District of Wisconsin was correct in determining that the
strikes in CIY-95-4207-JBJ and CIY-96-4117-JBJ were only partial or "spl it" dismissals and not
strikes, Rindahl still had three strikes and was foreclosed from proceeding in forma pauperis.
Second, the Western District of Wisconsin was incorrect in determining that this Court
dismissed only certain "claims" in CIY-95-4207-JBJ and CIY-96-4117-JBJ because in those
cases, this Court dismissed at the screening stage Rindahl's entire "case" or "action." In Turley,
the Seventh Circuit held that when a court dismisses "certain claims in an action" during screening,
allows other claims to survive screening to be decided on the merits, and does not dismiss the
entire "action[}" at screening, then such a "split" dismissal cannot count as a strike. See 625 F.3d
at 1008-09 (emphasis in original). A court may count "as a strike only the dismissal of an entire
action." Id. at 1009. But here, this Court, through the Honorable John B. Jones, dismissed both
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of Rindahl's Complaints or "case[s]" at issue in their entirety and did not allow any "claims" to
survive screening to be decided on the merits. See CIV-95-4207-JBJ, Doc. 5 at 2 (dismissing
entire Complaint during screening procedures as frivolous and lacking an arguable basis in law or
fact); CIV-96-4117-JBJ, Doc. 5 at 2 (holding that Rindahl's two claims lacked an arguable basis
in law or fact because his legal theories lacked merit and dismissing Complaint). These two
dismissals are strikes bringing his total to five?
B. Imminent Danger
Because Rindahl properly is saddled with five strikes, he may proceed in forma pauperis
only if he alleges imminent danger of serious physical harm. Martin, 319 F.3d 1048 at 1050.
Rindahl's Complaint does not allege that he is in physical danger. Rindahl complains of"Judicial
Discrimination and Corruption" and outlines alleged errors committed by this Court, the Eighth
Circuit, and the Clerks of Court for both the District of South Dakota and the Eighth Circuit in
handling his past § 1983 filings. Because Rindahl has not alleged sufficiently that he currently is
under imminent danger of serious physical harm, his petition to proceed in forma pauperis, for
which he has paid no filing fee, must be denied.
IV. CONCLUSION
For the reasons contained herein, it is hereby
ORDERED that Plaintiffs motions for leave to proceed in forma pauperis, Doc. 3 and
Doc. 20, are denied. It is further
ORDERED that Plaintiffs Complaint, Doc. 1, is dismissed without prejudice subject to
2 In the two cases in which the W.O. Wisconsin Order was entered, each case was
subsequently transferred to this District. Judge Schreier reviewed Rindahl's litigation history and
concluded that he had five strikes, denied him in forma pauperis status, and dismissed his
Complaints. CIV-11-4130, Doc. 44; CIV-11-4131, Doc. 46.
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Rindahl's prepayment of the $350.00 filing fee. It is further
ORDERED that Plaintiffs remaining motions, Doc. 2, Doc. 5, and Doc. 6, are denied
as moot.
Dated October 23,2013.
BY THE COURT:
Qu.a~
ROBERTO A. LANGE
UNITED STATES DISTRICT JUDGE
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