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Rindahl v. United States Attorney's Office For Minnesota

United States District Court, D. Minnesota

January 31, 2019

Randy Lee Rindahl, Plaintiff,
v.
United States Attorney's Office for Minnesota, Defendant.

          ORDER

          ELIZABETH COWAN WRIGHT UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Plaintiff Randy Lee Rindahl's Motion to Vacate/Reconsideration [sic] and Motion to Appoint Counsel (Dkt. No. 6). The Court previously denied Plaintiff's Application to Proceed in District Court without Prepaying Fees or Costs (Dkt. No. 4). For the reasons stated below, the Court denies the Motion.

         I. BACKGROUND

         Plaintiff, a South Dakota state prisoner, filed this case on November 21, 2018 seeking a writ of mandamus compelling the United States Attorney's Office in this District to investigate and prosecute an employee of the South Dakota Department of Corrections for allegedly making threats against a federal judge. (Dkt. No. 1.) Plaintiff did not file a cover sheet with his filing, but the Clerk's Office identified the filing as a § 1983 prisoner civil rights complaint on the docket header. (See generally Dkt.) However, Plaintiff characterized the filing as a “Motion for an Action to Compel” and referenced 28 U.S.C. § 1361, which provides that “[t]he district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff” in his papers. (See Dkt. No. 2 at 1; see also Dkt. No. 1 at 1 (referencing “his Petition for an Compel ‘Mandamus'”).)

         Plaintiff did not pay the filing fee for this case, but instead applied for in forma pauperis (“IFP”) status. (See Dkt. No. 3.) On November 27, 2018, the Court issued an Order denying Plaintiff's IFP application because Plaintiff is not permitted IFP status under 28 U.S.C. § 1915 of the Prison Litigation Reform Act (“PLRA”), which states that a prisoner may not bring a “civil action” as IFP status “if the prisoner has, on 3 or more 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.” (Dkt. No. 4 (quoting 28 U.S.C. § 1915(g)).) The Court determined that Plaintiff's case, as a petition for writ of mandamus under 28 U.S.C. § 1361, was a “civil action” for purposes of § 1915(g) and that Plaintiff has at least five “strikes” for previously dismissed cases or appeals under § 1915(g). (Id. at 2 (citing In re Tyler, 110 F.3d 528, 529 (8th Cir. 1997); Martin v. Grimshaw, 198 F.3d 248 (Table) (6th Cir. 1999); Rindahl v. Pristen, No. 13-4078, 2013 WL 5770540 (D.S.D. Oct. 24, 2013)). The Court ordered Plaintiff to pay the full $400 filing fee by December 22, 2018, if he chose to pursue this action, otherwise the Court would recommend dismissal without prejudice for failure to prosecute. (Dkt. No. 4 at 2-3.)

         Instead of paying the required filing fee, Plaintiff sent a letter to the Court (Dkt. No. 5) and filed the present Motion to Vacate/Reconsideration under Federal Rule of Civil Procedure Rule 60(b) arguing that his petition for a writ of mandamus is not a “civil action” under § 1915(g) (Dkt. No. 6 at 5), and that the Court mischaracterized his petition as a § 1983 complaint rather than as seeking a writ of mandamus (Dkt. No. 5 at 1).[1] Plaintiff argued that a writ of mandamus, as a common law writ like a writ of habeas corpus, is not a “civil action” as defined in § 1915(g) and therefore not subject to the PLRA's “three strikes” rule. (Id. (citing Andrews v. King, 398 F.3d 1113, 1122 (9th Cir. 2005) (holding “dismissed habeas petitions do not count as strikes under § 1915(g)))”.) Plaintiff also filed an Affidavit of Endangerment in support of his Motion to Vacate/Reconsideration. (Dkt. No. 7.) Finally, Plaintiff asks the Court to appoint counsel to represent him in this action. (Dkt. No. 6 at 9.)

         II. MOTION TO VACATE/RECONSIDERATION

         A. Legal Standard

         Rule 60 “provides for extraordinary relief which may be granted only upon an adequate showing of exceptional circumstances.” Jones v. Swanson, 512 F.3d 1045, 1048 (8th Cir. 2008) (quotations omitted). “Pursuant to District of Minnesota Local Rule 7.1(j), the Court will only grant permission to file a motion to reconsider ‘upon a showing of compelling circumstances,' such as to ‘correct manifest errors of law or fact or to present newly discovered evidence.'” Ibrahim v. Mayo Clinic, No. 14-cv-3026 (MJD/BRT), 2016 WL 7104865, at *2 (D. Minn. Oct. 7, 2016), R.&R. adopted by, 2016 WL 7045707 (D. Minn. Dec. 2, 2016) (footnote omitted) (quoting D. Minn. LR 7.1(j) and Buetow v. A.L.S. Enters., Inc., No. 07-cv-3970 (RHK/JJK), 2010 WL 2104641, at *1 (D. Minn. May 21, 2010)). A party cannot use a motion to reconsider “as a vehicle to reargue the merits of the underlying Motion.” Id.

         B. Analysis

         Plaintiff's motion fails under Federal Rule of Civil Procedure 60 and District of Minnesota Local Rule 7.1(j) (which governs requests for permission to file a motion for reconsideration). See Broadway v. Norris, 193 F.3d 987, 989 (8th Cir. 1999) (stating that a motion for “reconsideration” directed at an order is properly considered under Rule 60). Here, Plaintiff has not shown exceptional or compelling circumstances for this Court to reconsider its Order denying Plaintiff IFP status.[2]

         Plaintiff argues that the Court mischaracterized his petition as a § 1983 complaint (Dkt. No. 5 at 1). Although the Clerk's Office described Plaintiff's action as brought under § 1983 on the docket heading, the Court's order denying IFP status (Dkt. No. 4) plainly treats the Complaint as a petition for a writ of mandamus under § 1361. The Order never refers to § 1983, and instead states that Plaintiff “brings this action seeking a writ of mandamus compelling” Defendant to investigate and prosecute the alleged threat. (Id. at 1.) Moreover, the Court cited Martin v. Grimshaw, 198 F.3d 248 (6th Cir. 1999), noting that the court there found that an action “brought under 28 U.S.C. § 1361 is a ‘civil action' for purposes of § 1915.” (Id. at 2.) Accordingly, to the extent Plaintiff argues that the Court analyzed Plaintiff's action as a § 1983 action rather than a petition for a writ of mandamus, Plaintiff is incorrect. The fact that the docket header identifies Plaintiff's action as a § 1983 action does not constitute exceptional or compelling circumstances that would justify granting the Motion to Vacate/Reconsideration.

         Next, the Court considers Plaintiff's argument that the Court erred in finding his petition for IFP barred by the “three strikes” rule of the PLRA. (Dkt. No. 6 at 5.) Plaintiff argues that his writ of mandamus petition does not fall within the purview of the PLRA because it is not a “civil action” as defined in § 1915(g). (Id.) Section 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 court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon ...

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