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Ratigan v. Trogvac

August 24, 2009

BRIAN E. RATIGAN, PLAINTIFF,
v.
MARIE TROGVAC, ET. AL., DEFENDANTS.



The opinion of the court was delivered by: James F. McClure, Jr. United States District Judge

(Judge McClure)

MEMORANDUM

BACKGROUND

On September 8, 2008, plaintiff, Brian E. Ratigan, currently an inmate at the United States Penitentiary at Pollock, Louisiana, and formerly an inmate at the United States Penitentiary at Allenwood, White Deer, Pennsylvania, filed this Bivens*fn1 civil rights action, pro se, under 28 U.S.C. § 1331. (Rec. Doc. No. 1).

Ratigan's first amended complaint (Rec. Doc. No. 7) was a seven count complaint against Maria Trogvac, Todd Cerney, and Chris McConnell. On March 11, 2009 we dismissed Counts I (RICO), III (First Amendment), IV (Fourth Amendment right against unreasonable search and seizure), V (Sixth Amendment Right to assistance of counsel), VI (Eighth Amendment) and Count VIII (Ninth Amendment). (Rec. Doc. No. 22).

With respect to Count II, we dismissed the Miranda violation allegation. However, Ratigan was permitted to proceed with his Fifth Amendment due process claim regarding the 15 days he spent in disciplinary segregation in the SHU due to an overturned misconduct conviction and the 68 days he spent in disciplinary segregation pursuant to the Administrative Detention Order of October 10, 2006. (Rec. Doc. No. 22). With respect to Count VII, Ratigan was given leave to amend his claim within 14 days of the filing of our order for Ratigan to state the personal involvement of defendants with respect to this claim.

In his second amended complaint filed April 27, 2009, Ratigan added nine additional defendants to his original three named defendants. Ratigan named as defendants Marie Trgovac, Chris McConnell, Todd Cerney, Daniel P. Womeldorf, Todd Matthews, Mitchell, R. Hanson, T.M. Szulanczyk, Warden Jonathan C. Miner, Henry J. Sadowski, D. Scott Dodril, Herrell Watts, and Harley G. Lappin. (Rec. Doc. No. 30).

On May 12, 2009, the magistrate judge issued his Report and Recommendation based on the second amended complaint. (Rec. Doc. No. 33).

The Report and Recommendation of the magistrate judge is not the subject of the instant Memorandum and Order. The magistrate judge's Report and Recommendation, along with Ratigan's Motion for Leave to Amend the Complaint and his Motion to Appoint Counsel will be dealt with in a separate, forthcoming order. (Rec. Doc. Nos. 33, 42, and 44). Also, Ratigan filed a Motion for Recusal, which will also be dealt with in a separate order. (Rec. Doc. No. 39).

At issue in the instant memorandum and order is Ratigan's "Notice of Motion, and Motion to Alter, Amend or Reconsider Judgment Pursuant to F.R.C.P. 59(e)." (Rec. Doc. No. 37). This Motion for Reconsideration is ripe for disposition, and now for the following reasons we will grant the motion. (Rec. Doc. No. 37). Accordingly, this vacates our previous withdrawal of Ratigan's "Alter, Amend or Reconsider Judgment [sic] Pursuant to Fed. R. Civ. P. 29(e)." (Rec. Doc. No. 25). Now, for the following reasons we will deny this motion. (Rec. Doc. No. 25).

DISCUSSION:

1. Motion for Reconsideration

The subject of the instant Memorandum and Order is Ratigan's Motion for Reconsideration. (Rec. Doc. No. 37). A brief history of Ratigan's filings is in order. On March 23, 2009 Ratigan filed a twenty-one page Motion for Reconsideration of our March 11, 2009 Order, for the court to reconsider our dismissal of Ratigan's First Amendment claim. (Rec. Doc. No. 25). Ratigan did not file a supporting brief, although the reasoning for his motion was fully set forth in the motion. We summarily denied the Motion for Reconsideration on April 22, 2009 based on Ratigan's failure to submit a supporting brief citing Middle District Local Rule. 7.5. (Rec. Doc. No. 28). On May 4, 2009, Ratigan filed a Motion for Relief From a Final Judgment Pursuant to Fed. R. Civ. P. 60(b)(1) arguing that the Motion for Reconsideration is not a "pre-trial motion" and therefore Rule 7.5 and its supporting brief requirement does not apply. (Rec. Doc. No. 31). On May 26, 2009, we again summarily denied Ratigan's Motion because that order was not a final judgment and because no supporting brief had been filed. (Rec. Doc. No. 36).

Now before the court is a second Motion for Reconsideration asserting that L.R. 7.5 does not apply, and the court should reconsider our denial of his first ...


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