United States District Court, D. South Dakota, Southern Division
ORDER DENYING LEAVE TO PROCEED IN FORMA
ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE
Randy Rindahl, moves for leave to proceed in forma pauperis.
Doc. 5. The Prison Litigation Reform Act, 28 U.S.C. §
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 relief may be granted, unless the
prisoner is under imminent danger of serious physical injury.
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.
Daugaardet al, Civ. 11-04082-KES Docket 48 at 3-5;
Docket 58 at 14, which in turn lists five previous cases
dismissed as "strikes" under 1915(g)). He is,
therefore, barred from filing a federal civil case unless he
pays the filing fee in full or alleges imminent danger of
serious physical injury.
complaint, Rindahl claims he is under imminent danger of
serious physical injury. Doc. 1 at 2. Rindahl claims that a
previously broken clavicle and rib could puncture his heart
or lung and place him in dangerof further injury.
Id. Rindahl further alleges that he already has lung
scarring, which was discovered in January of 2017.
Id. Rindahl claims that these conditions "show
a risk of further injury, and threat to life[.]"
Id. at 16. Rindahl does not allege when the rib and
clavicle break occurred. Rindahl does, however, allege that a
St. Lukes's radiologist concealed the broken clavicle and
rib in January of 2017. See Id. at 12. From this,
the Court can infer that the rib and clavicle break occurred
in or before January of 2017.
imminent danger of serious physical injury exception ".
. . focuses on the risk that the conduct complained of
threatens continuing or future injury, not on whether the
inmate deserves a remedy for past misconduct."
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." Id. For
example, the "imminent-
danger-of-serious-physical-injury standard was satisfied ...
when an inmate alleged deliberate indifference to his serious
medical needs that resulted in five tooth extractions and a
spreading mouth infection requiring two
additionalextractions, McAlphin v. Toney, 281 F.3d
709, 710-11 (8th Cir.2002)." Id; see also Voth v.
Lytle, 2005 WL 3358909, at *1 (D. Or. Dec. 8, 2005)
(imminent danger standard satisfied where a plaintiff
experienced severe pain and constant rectal bleeding for four
months and believed something had ruptured in his lower
stomach); Perez v. Sullivan, 2005 WL 3434395 at *1
(W.D. Wis. Dec. 13, 2005) (imminent danger standard satisfied
where Plaintiff alleged severe pain stemming from spinal
arthritis and chronic nerve root damage for which a disk
laminectomy had been recommended).
McAlphin, the plaintiff was experiencing extreme
pain from loose and infected teeth, which caused bleeding,
swelling, and trouble sleeping and eating. Here, Rindahl
demonstrates no immediate danger of physical injury and
instead contends that his past ailments could cause further
injury. Doc. 1 at .16; see Martin v. Shelton, 319
F.3d 1048, 1050 (8th Cir. 2003) ("conclusory
assertions" were insufficient to "invoke the
exception to § 1915(g)"). RindahPs case is more
similar to Cole v. McNeil, 2010 WL 2872211, at *2
(N.D. Fla. April 13, 2010). In Cole, the Northern
District of Florida found no imminent danger where plaintiff
had a previously broken rib that plaintiff acknowledged had
healed but was "still 'significantly displaced
[.]' " Id. Similarly, Rindahl's broken
rib and clavicle occurred well before his allegation of
imminent danger. Doc. 1 at 12. Rindahl also does not contend
his rib and clavicle remain significantly displaced or have
failed to heal. Liberally construed, Rindahl's complaint
does not satisfy the imminent danger of serious physical
that Rindahl's motion for leave to proceed in forma
pauperis (Doc. 5) is denied.
FURTHER ORDERED that Rindahl shall pay the full filing fee of
$400 to the clerk of court within thirty (30) days after
receipt of this Order if he wishes to proceed. If he fails ...