Maier v. Ferriter et al

Filing 11

ORDER denying 8 Motion for Reconsideration. Signed by Judge Dana L. Christensen on 6/5/2012. Mailed to Maier. (TAG, )

FILED

JUN 052012
';ATRICK E. DUFFY, CLERK

DePUfY ClERK. MI/l8<:liM ­

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA'

HELENA DIVISION

Cause No. CV 12-00028-H-DLC-RKS

LLOYD S. MAIER,
Plaintiff,
vs.

ORDER

MIKE FERRITER, LEROY
KlRKEGARD, TOM WILSON, LINDA
JESS, TRJSTAN KOHUT, JENNIE
SMITH, GABRJEL NORTON, SGT.
FETTERS, MONTANA
DEPARTMENT OF CORRECTIONS,
Defendants,
Pending is Plaintiff Lloyd Maier's "Order to Cause for a Temporary
Restraining Order." (Doc. No, 8). The document and supporting brief are Maier's
second motion tor a temporary restraining order. Maier's first motion for a
temporary restraining order was denied April 10, 2012. (Doc. No.6). The
pending motion has been construed as a motion for reconsideration pursuant to
Local Rule 7.3 and as such, will be denied.
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Pursuant to Local Rule 7.3(b), a motion for leave to file a motion for
reconsideration must meet at least one of the following two criteria:
(1) (A) the facts or applicable law are materially different from

the facts or applicable law that the parties presented to

the Court before entry of the order for which

reconsideration is sought, and

(B) despite the exercise of reasonable diligence, the party

applying for reconsideration did not know such fact or

law before entry of the order; or

(2) new material facts emerged or a change of law occurred after
entry of the order.
Maier makes the same arguments raised in his first motion, that Defendant
Norton is subjecting him to verbal and physical threats and as such, he believes he
is in substantial risk of an assault. (Doe. Nos. 8, 9). None of his arguments arc
new, nor is there any reason why Maier could not have raised these issues in his
prior motion for a temporary restraining order. Maier simply has not established
that the prior denial of the motion for temporary restraining order was
inappropriate.
Allegations of mere threats are not cognizable under § 1983. See Gaut v.
Sunn, 810 F.2d 923,925 (9th Cir. 1987) (mere threat does not constitute
constitutional wrong, nor do allegations that naked threat was for purpose of
denying access to courts compel contrary result). Thus, there is no reason to

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reconsider the prior order.
Based on the foregoing, the Court issues the following:
ORDER

1. Maier's Second Motion for Temporary Restraining Order (Doc. No.8) is
denied.
2. At all times during the pendency of this action, Maier SHALL
IMMEDIA TELY ADVISE the Court and opposing counsel of any change of
address and its effective date. Such notice shall be captioned "NOTICE OF
CHANGE OF ADDRESS." The notice shall contain only information pertaining
to the change of address and its effective date, except if Maier has been released
from custody, the notice should so indicate. The notice shall not include any
motions for any other relief. Failure to file a NOTICE OF CHANGE OF
ADDRESS may result in the dismissal ofthe action for failure to prosecute
pursuant to Fed.R.Civ.P. 41(b).
DATED this

5~

day of June, .

Dana L. Christensen,

United States District Court

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