Maier v. Ferriter et al

Filing 6

ORDER granting 1 Motion for Leave to Proceed in forma pauperis; denying 5 Motion for TRO Signed by Judge Dana L. Christensen on 4/12/2012. Mailed to Maier. (TAG, ) Modified on 4/13/2012 to correct signing date (TAG, ).

IN THE UNITED STATES DISTRICT

COURTF1LED

FOR THE DISTRICT OF MONTANA

PAoTR~ 13 2012

8):

HELENA DIVISION
LLOYD S, MAIER,

/( E. DUFFY, CLER/(

~

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

Plaintiff,
vs.

ORDER

MIKEFERJUTER,LEROY
KIRKEGARD, TOM WILSON, LINDA
JESS, TRISTAN KOHUT, JENNIE
SMITH, GABRIEL NORTON, SGT.
FETTERS, MONTANA
DEPARTMENT OF CORRECTIONS,
Defendants.
Pending are Plaintiff Lloyd Maier's Motion to Proceed in Forma Pauperis
(Doc. No.1), proposed Complaint (Doc. No.2). and "Motion for T.R.O." (Doc.
No.5). This Court will only consider the motion to proceed in forma pauperis and
"Motion for T.R.O." Magistrate Judge Strong will handle all further pretrial
matters.

I. MOTION TO PROCEED IN FORMA PAUPERIS
Mr. Maier submitted a declaration and account statement sufficient to make
the showing required by 28 U.S.C. § 1915(a). Accordingly, the request"to proceed
in forma pauperis will be granted. 28 U.S.C. § 1915(a).

Pursuant to 28 U.S.C. § 1915(b)(l), Mr. Maier is required to pay the
statutory filing fee 0[$350.00. Mr. Maier submitted an account statement
showing average monthly deposits of $393.83 over the six months immediately
preceding the filing of this action. Therefore, an initial partial filing fee of $78.77
will be assessed by this Order. See 28 U.S.C. § 1915(bXIXB) (allowing an
assessment in the amount of 20% ofthe prisoners average monthly deposits). By
separate order, the Court will direct the Montana State Prison to collect the initial
partial filing fee from Mr. Maier's account and forward it to the Clerk of Court.
Thereafter, Mr. Maier will be obligated to make monthly payments of 20%
of the preceding month's income credited to Mr. Maier's prison trust account. The
percentage is set by statute and cannot be altered. See 28 U.S.C. § 1915(b)(2). By
separate order, the Court will direct the agency having custody of Mr. Maier to
forward payments from Mr. Maier's account to the Clerk of Court each time the
amount in the account exceeds $10.00, until the filing fee is paid in full. 28
U.S.C. § 1915(b)(2).

II. MOTION FOR TEMPORARY RESTRAINING ORDER
Mr. Maier has filed a one-page "Motion for T.RO." (Doc. No.5) which has
been construed as a motion for a temporary restraining order. The motion explains
that for the last two weeks, every time Gabriel Norton (a named Defendant) works

2

in Mr. Maier's housing unit, he makes "vague threats" such as "That's right white
boy" and "My time is coming." Mr. Maier has construed these as threats against
his person and asks the Court to help him.

Mr. Maier has not complied with the notice provisions ofRule 65 of the
Federal Rules of Civil Procedure. A preliminary injunction may only be issued on
notice to the adverse party. Fed.R.Civ.P. 65(a)(I). A temporary restraining order
may be granted without written or oral notice to the adverse party or that party's
attorney if: (1) it clearly appears from specific facts shown by affidavit or by the
verified complaint that immediate and irreparable injury, loss or damage will result
to the applicant before the adverse party or the party's attorney can be heard in
opposition, and (2) the applicant's attorney (plaintiff himself in this case, as he
proceeds pro se) certifies in writing the efforts, if any, which have been made to
give notice and the reasons supporting the claim that notice should not be
required. Fed.R.Civ.P.65(b). Mr. Maier has not satisfied either requirement.
"The proper legal standard for preliminary injunctive relief requires a party
to demonstrate 'that he is likely to succeed on the merits, that he is likely to suffer
irreparable hann in the absence of preliminary relief, that the balance of equities
tips in his favor, and that an injunction is in the public interest.'" Stormans. Inc. v.
Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (quoting Winter v. Natural
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Resources Defense Council, Inc" 555 U.S. 7, 129 S.Ct. 365, 374 (9th Cir. 2009)).
In addition, the Prison Litigation Refonn Act requires that,
In any civil action with respect to prison conditions, to the extent
otherwise authorized by law, the court may enter a temporary
restraining order or an order for preliminary injunctive relief.
Preliminary injunctive relief must be narrowly drawn, extend no
further than necessary to correct the hann the court finds requires
preliminary relief, and be the least intrusive means necessary to
correct that hann. The court shall give substantial weight to any
adverse impact on public safety or the operation of a criminal justice
system caused by the preliminary relief ...
18 U.S.C. § 3626(a)(2).

Mr. Maier has made no showing that he is likely to succeed on the merits of
his claims and his allegations ofhann to his person are speculative at best. The
motion will be denied.
Based upon the foregoing, the Court issues the following:

ORDER
I. Mr. Maier's Motion to Proceed in fonna pauperis is granted. The Clerk
shall file the Complaint without prepayment of the filing fee. An initial partial
filing fee of$78.77 will be assessed.
2. The Clerk shall edit the text of the docket entry for the Complaint to
remove the word "LODGED" and the Complaint is DEEMED FILED on March
26,2012.
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3. Mr. Maier's Motion for a Temporary Restraining Order is denied.
4. At all times during the pendency ofthis action, Mr. Maier SHALL
IMMEDIATELY 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 Mr. 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 of the action for failure to prosecute
pursuant to Fed.R.Civ.P. 41(b).
DATED this

12+tt day of April,

012.

Dana L. Christensen, District Judge
United States District Court