January 20, 2011
DENNIS DAUGAARD, GOVERNOR, STATE OF SOUTH DAKOTA; MARTY JACKLEY, ATTORNEY GENERAL; AARON MCGOWAN, STATE ATTORNEY, MINNEHAHA COUNTY; BRYAN GOATMAKER, DIRECTOR OF THE DIVISION CRIMINAL INVESTIGATION; TIM REISCH, SEC. OF CORRECTIONS; D. WEBER, WARDEN; DARYL SLOUCHES, DEPUTY WARDEN; D. YOUNG, ASST. WARDEN ANNEX PRISON; O. SURREAL, ASSC. WARDEN; T. PINTO, ASSC. WARDEN; C. VAN VERNE, SENIOR MAJOR; T. LINNIWEBER, SECURITY MAJOR; M. RODOSKY, SECURITY CAPT.; J. MILLER, SECURITY LT.; WOODWARD, SECTION MANAGER; FANTROY, SECTION MANAGER; DITTMONSON, SECTION MANAGER; MATSEN, SECTION MANAGER; WAAGMEESTER, SECTION MANAGER; SCO PAROLE AGENT MCCLOUD; LT. LAUSENG; SATTULU, SUPERVISOR, DCI; LEUNING, DCI; T. WOLFGANG, DIRECTOR OF MENTAL HEALTH; J. FALON, MENTAL HEALTH; G. BARSTAND, MENTAL HEALTH; OELSEN, CASE MANAGER (RETIRED); K. VAMERAN, CASE MANAGER/PREA DIRECTOR; OLSON, SCO; KLINE, SGT/COORDINATOR; ROTER, LT./PHEASENT LAND INDUSTRIES; KLINSAUCER, MENTAL HEALTH (RETIRED); L. HINKLEY, AVERA MCKENNAN HOSPITAL; VELD, COORDINATOR SIOUX FALLS PRISON SYSTEM, DEFENDANTS.
The opinion of the court was delivered by: Karen E. Schreier Chief Judge
ORDER DENYING MOTION FOR RECUSAL, DENYING MOTION FOR RECONSIDERATION, AND DENYING MOTION TO ENTER EVIDENCE
Plaintiff, Randy Rindahl, moves to recuse Chief Judge Karen Schreier and Magistrate Judge John Simko from this case. Rindahl also moves for rehearing and reconsideration of the order denying him in forma pauperis status and dismissing his case. Third, Rindahl moves to enter several exhibits into evidence.
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). This action was initially filed by Rindahl in the Eastern District of Wisconsin, but the case was transferred to this court because venue was improper in the Eastern District of Wisconsin, but venue is proper in the District of South Dakota. Docket 26.
Rindahl moved 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). The court adopted Magistrate Judge Simko's report and recommendation in full on September 29, 2011. Docket 45.
Rindahl is a prolific and abusive litigant. This court previously found that Rindahl had at least five strikes against him under 28 U.S.C. § 1915(g), and he has been sanctioned for his misrepresentations to the court on at least one occasion. Docket 45.
Rindahl asserts that Chief Judge Schreier and Magistrate Judge Simko should be recused from this case because he has filed complaints against them "in the judicial council." Specifically, Rindahl asserts that he has filed complaints to prove that the two judges made illegal name changes and posted illegal litigation case numbers in his filings.
Title 28, section 455(a) requires a judge to recuse his or herself in "any proceeding in which [his or her] impartiality might reasonably be questioned." Rindahl's motion fails because it is untimely. Any grounds for recusal must be asserted in a timely fashion. See Oglala Sioux Tribe of Pine Ridge Indian Reservation v. Homestake Mining Co., 722 F.2d 1407, 1414 (8th Cir. 1983). A party cannot wait until an unfavorable judgment is issued and then seek to have the judge who issued the judgment recused. Id. Accordingly, Rindahl's motion to recuse Judge Schreier and Magistrate Judge Simko is denied.
II. Motion for Reconsideration and Rehearing
Rindahl next moves for rehearing and reconsideration of the dismissal of his case pursuant to Rule 60 of the Federal Rules of Civil Procedure. "Motions for reconsideration serve a limited function: to correct manifest errors of law or fact or to present newly discovered evidence." Hagerman v. Yukon Energy Corp., 839 F.2d 407, 414 (8th Cir. 1988) (quotations and citations omitted). Rule 60(b) provides that a court may relieve a party from a final judgment and reopen his case for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence, that, with reasonable diligence could not have been discovered in time to move for ...
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