Rindahl v. Malsam-Rysdon

RANDY LEE RINDAHL, Plaintiff, v. KIM MALSAM-RYSDON, EX-SECRETARY OF HEALTH, IN HER INDIVIDUAL CAPACITY; JOAN ADAM, INTERIM SECRETARY OF HEALTH, IN HER INDIVIDUAL AND OFFICIAL CAPACITY; STEVE BARNETT, SECRETARY OF STATE, IN HIS INDIVIDUAL CAPACITY; KRISTI NOEM, GOVERNOR FOR THE STATE OF SOUTH DAKOTA, IN HER INDIVIDUAL AND OFFICIAL CAPACITY; TIM REISCH, INTERIM SECRETARY OF CORRECTIONS, IN HIS INDIVIDUAL CAPACITY; DOUG CLARK, ACTING WARDEN / INTERIM SECRETARY OF CORRECTIONS / DEPUTY SECRETARY, IN HIS INDIVIDUAL CAPACITY; DAVID SULLIVAN, WARDEN, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; TROY PONTO, DEPUTY WARDEN, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; JOHN BENTING, ASSOC. WARDEN, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; J. COOK, ASSOC. WARDEN, IN HIS OR HER INDIVIDUAL AND OFFICIAL CAPACITY; C. ROTERT, EX-ASSOC. WARDEN / CCM, IN HIS OR HER INDIVIDUAL AND OFFICIAL CAPACITY; ALAN MADSEN, SECTION MANAGER, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; SAM BADURE, SECTION MANAGER, IN HIS OR HER INDIVIDUAL AND OFFICIAL CAPACITY; ELLIS, SECTION MANAGER, IN HIS OR HER INDIVIDUAL AND OFFICIAL CAPACITY; T. SCHNEIDER, SECTION MANAGER, IN HIS OR HER INDIVIDUAL AND OFFICIAL CAPACITY; K. OLSON, CASE MANAGER, IN HIS OR HER INDIVIDUAL AND OFFICIAL CAPACITY; M. JONES, DISCIPLINARY HEARING OFFICER, IN HIS OR HER INDIVIDUAL AND OFFICIAL CAPACITY; J. DREISKE, EX-DEPUTY WARDEN, IN HER INDIVIDUAL CAPACITY; D. YOUNG, EXWARDEN, IN HIS INDIVIDUAL CAPACITY; L. LENTER, RADIOLOGIST, IN HIS OR HER INDIVIDUAL AND OFFICIAL CAPACITY; B. RAU, RADIOLOGIST, IN HIS OR HER INDIVIDUAL AND OFFICIAL CAPACITY; D. FRITZ, RADIOLOGIST, IN HIS OR HER INDIVIDUAL AND OFFICIAL CAPACITY; S. WOODWARD, RADIOLOGIST, IN HIS OR HER INDIVIDUAL AND OFFICIAL CAPACITY; S. LOCKWOOD, RADIOLOGIST, IN HIS OR HER INDIVIDUAL AND OFFICIAL CAPACITY; BROZIK, MD, IN HIS OR HER INDIVIDUAL AND OFFICIAL CAPACITY; W. MULLIN, RADIOLOGIST, IN HIS OR HER INDIVIDUAL AND OFFICIAL CAPACITY; M. KING, REGIONAL GTL MANAGER, IN HIS OR HER INDIVIDUAL AND OFFICIAL CAPACITY; ANY AND ALL UNKNOWN GTL PERSONNEL, IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES; M. MYERS, RADIOLOGIST, IN HIS OR HER INDIVIDUAL AND OFFICIAL CAPACITY; UNKNOWN MEDICAL PERSONNEL, IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES; CORRECTIONAL HEALTH SERVICES; M. CARPENTER, MEDICAL DIRECTOR, IN HER INDIVIDUAL AND OFFICIAL CAPACITY; E. REGIER, MD, IN HIS OR HER INDIVIDUAL AND OFFICIAL CAPACITY; UNKNOWN CORRECTIONAL HEALTH SERVICES NURSING STAFF, IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES; AVERA MEDICAL GROUP; SURGICAL INSTITUTE OF SOUTH DAKOTA; SIOUX FALLS SPECIAL HOSPITAL; GTEL/GLOBAL TEL LINK CORPORATION; CENTER FOR DIAGNOSTIC IMAGING; DISTMCT OF SOUTH DAKOTA - DEPARTMENT OF JUSTICE; UNKNOWN DOJ SECTION CHIEF(S) & ATTORNEY(S) & AGENTS, IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES; KELLIE WASKO, IN HER OFFICIAL CAPACITY, MONAE JOHNSON, IN HER OFFICIAL CAPACITY, Defendants.

No. 4:22-CV-04073-RAL

United States District Court, D. South Dakota, Southern Division

December 20, 2022

1915A SCREENING DISMISSING IN PART, DIRECTING SERVICE IN PART, AND RULING ON MISCELLANEOUS MOTIONS

ROBERTO A. LANGE CHIEF JUDGE

Plaintiff Randy Lee Rindahi, an inmate at the South Dakota State Penitentiary (SDSP), filed a pro se lawsuit under 42 U.S.C § 1983 and several other federal statutes. Doc. 1. Rindahi is a barred filer under the Prison Litigation Reform Act (PLRA), but he paid the entire filing fee on July 15 2022. Rindahi has also filed a motion for appointment of counsel, two motions for a temporary restraining order, and a motion titled “Motion to Correct Defect Within Conclusion/Remedies/Injunctions - Not Meant to be Amend/Supplement[.]”^[1] Docs. 3, 5, 6, 7.

I. Prior Rule 11 Sanction

A different judge than the undersigned previously sanctioned Rindahi under Federal Rule of Civil Procedure 11 for committing fraud on the court. Rindahi v. Daugaard, 2011 WL 4549151, at *6 (D.S.D. Sept. 29, 2011). Rindahi is required to “attach a copy of the Report and Recommendation [describing his fraud on the court] and a copy of [the opinion adopting the Report and Recommendation] to any future complaint or initial filing in any state or federal court within the United States.” Id. Although Rindahi has not attached a copy of the Report and Recommendation and the opinion adopting it to his complaint, he has provided notice of his Rule

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11 sanction, including the case number for the case in which he was sanctioned, and explained that he is unable to print a physical copy of the Report and Recommendation and the opinion required under his sanction while imprisoned. Doc. 4. Thus, this Court finds that Rindahi has substantially complied with his sanction and will now screen his complaint under 28 U.S.C. § 1915A.

II. Motion for Recusal

Rindahi has filed a motion for the recusal of the undersigned judge, citing 28 U.S.C. § 455 and 28 U.S.C. § 144. Doc. 10. In a prior case brought by Rindahi, this Court ruled on several motions pertaining to Rindahi's claims regarding billing for prison phone services. Rindahi v. Noem, 2020 WL 6728840 (D.S.D. Nov. 16, 2020). In his current motion for recusal, Rindahi notes a typographical error in this Court's ruling in that previous case in which the term “flat-rate calling[,]” a type of phone billing arrangement, is mistakenly referred to as “flat-rat calling[.]” Doc. 10 at 2-3 (citing Rindahi, 2020 WL 6728840, at *6 n.5). Rindahi argues that this error demonstrates bias on the part of the undersigned judge. Id.

Under 28 U.S.C. § 455, “[a] judge must recuse from ‘any proceeding in which [the judge's] impartiality might reasonably be questioned.' ” United States v. Melton, 738 F.3d 903, 905 (8th Cir. 2013) (alteration in original) (quoting 28 U.S.C. § 455(a)). This standard is objective and questions “whether the judge's impartiality might reasonably be questioned by the average person on the street who knows all the relevant facts of a case.” Id. (quoting Moran v. Clarke, 296 F.3d 638, 648 (8th Cir. 2002) (en banc)). The party who files the motion for recusal “carries a heavy burden of proof; a judge is presumed to be impartial and the party seeking disqualification bears the substantial burden of proving otherwise.” Fletcher v. Conoco Pipe Line Co., 323 F.3d 661, 664 (8th Cir. 2003) (quoting Pope v. Fed. Express Corp., 974 F.2d 982, 985 (8th Cir. 1992)).

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The party seeking recusal must show “that the judge had a disposition so extreme as to display clear inability to render fair judgment.” Melton, 738 F.3d at 905 (cleaned up). Rindahi bases his motion on allegations that this Court's prior ruling demonstrates bias against him. Doc. 10 at 2-3. But “judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.” Liteky v. United States, 510 U.S. 540, 555 (1994). A judicial ruling “cannot possibly show reliance upon an extrajudicial source; and can only in the rarest circumstances evidence the degree of favoritism or antagonism required ... when no extrajudicial source is involved. Almost invariably, they are proper grounds for appeal, not for recusal.” Id. Here, Rindahi does not identify an extrajudicial source of evidence of bias and relies only on an unintentional typographical error.

“Section 144 provides for recusal of a district court judge where a legally sufficient affidavit is timely filed which demonstrates a personal bias or prejudice of the judge.” United States v. Faul, 748 F.2d 1204, 1210 (8th Cir. 1984). Relief under § 144 “is expressly conditioned on the timely filing of a legally sufficient affidavit.” Id. (citing United States v. Anderson, 433 F.2d 856, 859 (8th Cir. 1970)). The affidavit must allege bias or prejudice that “stem[s] from an extrajudicial source and result[s] in an opinion on the merits on some basis other than what the judge learned from his participation in the case.” Id. at 1211 (quoting United States v. Grinnell Corp., 384 U.S. 563, 583 (1966)).

Rindahi has submitted an affidavit in which he argues that the typographical error in question is evidence of bias. Doc. 11. But as above, a typographical error in an opinion is not an extrajudicial source of evidence of bias, nor is an affidavit arguing that the typographical error shows bias. Thus, Rindahi's motion for recusal, Doc. 10, is denied.

III. 1915A Screening

A. Factual Allegations of Rindahi's Complaint

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Rindahi claims that various state and private actors have violated his rights in several ways. See Doc. 1 at 2-64. He claims that plea agreements in South Dakota, including his own plea agreement, are unconstitutional because South Dakota has passed a statute regarding capability to enter into a contract and, according to Rindahi, plea agreements must be governed by federal law rather than state law. Id. at 2.

Rindahi alleges that Global Tel Link (GTL),^[2] a private business that provides telecommunications services for South Dakota Department of Corrections (SD DOC) prisons, has violated federal law by failing to disclose its rates and by engaging in flat rate billing. Id. at 3-6. He alleges that he communicated with Mike King, Regional Manager for GTL regarding these issues. Id. at 4. Rindahi attaches billing records from GTL that he claims show a $0.11 flat rate applied to interstate long distance phone calls. Id. at 3-5. He also claims that the S.D. DOC receives a kickback of $0.03 per minute from every $0.08 per minute charged to inmates by GTL. Id. at 62-63. He alleges that this kickback is a violation of the Fifth Amendment Takings Clause and that GTL and the S.D. DOC are unjustly enriched by these rates. Id. Rindahi further claims that GTL is unjustly enriched by the media streaming services it provides to inmates. Id. He states that a monthly subscription to streaming media is $8.99 with an additional $11.00 service charge and that a three-hour subscription is...