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Ratigan v. Trogvac

August 28, 2009

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



The opinion of the court was delivered by: Judge McClure

MEMORANDUM

BACKGROUND

On September 8, 2008, plaintiff, Brian E. Ratigan, currently an inmate at the United States Penitentiary at Pollock, 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 in Count II. 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 a seventeen page Report and Recommendation based on the second amended complaint. (Rec. Doc. No. 33).

On June 19, 2009, Ratigan filed his objections to the Report and Recommendation on June 19, 2009. (Rec. Doc. No. 46). Thus, the matter is ripe for disposition.

Also ripe for disposition are Ratigan's "Motion for Leave to Amend/Correct His Civil Rights Complaint" (Rec. Doc. No. 42), and "Motion to Renew Request for Appointment of Counsel" (Rec. Doc. No. 44).

Now, for the following reasons we will adopt, in part, the Report and Recommendation of the magistrate judge, in so far as it is consistent with this order. We will remand to the magistrate judge Ratigan's motion to amend his complaint and his motion for appointment of counsel.

DISCUSSION

A district court reviews de novo those portions of a magistrate judge's report and recommendation to which a party objects. Middle District Local Rule 72.3. The court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id.

On March 11, 2009, we dismissed counts I, III, IV, V, VI and VIII of plaintiff's first amended complaint. (Rec. Doc. No. 22). We also partially dismissed count II, directing that "plaintiff may proceed with respect to his Count II due process claim under the Fifth Amendment regarding the fifteen days he spent in disciplinary segregation in the SHU due to an overturned misconduct conviction and the sixty-eight days he spent in disciplinary segregation pursuant to the Administrative Detention Order of October 10, 2006." (Id.) We also granted plaintiff leave to amend Count VII to state the personal involvement of the defendants within fourteen days ...


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