Rindahl v. Kaemingk et al
ORDER denying 2 Motion for Leave to Proceed in forma pauperis. Plaintiff shall pay the full filing fee of $400 to the clerk of court by August 10, 2017, or he may amend his complaint to show imminent danger of serious physical injury. If he fails to do so, the case will be dismissed without prejudice. Signed by U.S. District Judge Roberto A. Lange on 7/10/17. (DJP)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
KAEMINGK, D. Sec. if Corrections;
YOUNG, D. Warden;
PONTO, T. Assoc. Warden;
ALLCOCK, A. Assoc. Warden;
DITMANSON, K. Section Manager;
MELROSE, T. Section Manager
ORDER DENYING LEAVE TO
PROCEED IN FORMA PAUPERIS
ANY AND ALL UKNOWN 'DOC
Plaintiff, Randy Rindahl, moves for leave to proceed in forma pauperis.
Docket 2. The Prison Litigation Reform Act, 28 U.S.C. § 1915(g) 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 eourt of
the United States that was dismissed on the grounds that it is
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.
Rindahl has filed more than 3 cases that were dismissed as frivolous,
malicious, or lacking merit. See Rindahl v. Young et al, Civ. 15-4182-RAL
Docket 9 (citing Rindahl v. Daugaard et al, Civ. 11-04082-KES Docket 48 at 35; Docket 58 at 14). He is, therefore, barred from filing a federal civil case
unless he pays the filing fee in full or alleges imminent danger of serious
Liberally construed, Rindahl's complaint does not allege imminent
danger of serious physical injury. Although he alleges defendants' actions have
led to injuries, he has not explained what happened. See Martin v. Shelton, 319
F.3d 1048, 1050 (8th Cir. 2003)("conclusory assertions" were insufficient to
"invoke the exception to § 1915(g)"). Rindahl complains that he will be double
celled, and suggests that he should not be under the Prison Rape Elimination
Act ("PREA"). Courts have found that PREA, however, does not create a private
right of action enforceable by an individual civil litigant. Woods v. Hays, No.
2:15CV13 GDP, 2015 WL 3645141, at *2 (E.D. Mo. June 10, 2015); see also
Krieg v. Steele, 599 F. App'x 231, 232 (5th Cir.), cert, denied, 136 S. Ct. 238
(2015). This Court agrees. Further, Rindahl cannot state a claim that
defendants violated prison policy because "there is no § 1983 liability for
violating prison policy." Gardner v. Howard, 109 F.3d 427, 430 (8th Cir. 1997);
see also Moore v. Rowley, 126 F. App'x 759 (8th Cir. 2005).
Accordingly, it is
ORDERED that Rindahl's motion to proceed in forma pauperis (Docket 2)
IT IS FURTHER ORDERED that Rindahl shall pay the full filing fee of
$400.00 to the clerk of court by August 10, 2017, or he may amend his
complaint to show imminent danger of serious physical injury. If he fails to do
so, the case will be dismissed without prejudice.
BY THE COURT:
ROBERTO A. LA^JGE
UNITED STATES DISTRICT JUDGE
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