Nunez v. Durango et al
Filing
30
OPINION: Defendants' motion for summary judgment on exhaustion is denied 17 . Plaintiff's motion to file an amended complaint is denied because Plaintiff has not attached his proposed amended complaint 29 . If Plaintiff seeks to file an amended complaint, he must file a motion for leave, attaching the amended complaint and explaining how the amended complaint is different from the original complaint. The proposed amended complaint must set forth all claims against all defendants b ecause, if allowed, the amended complaint will completely replace the original complaint. The discovery stay is lifted. Discovery closes March 18, 2019. Dispositive motions are due April 15, 2019. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 01/08/2019. (SKN, ilcd)
E-FILED
Tuesday, 08 January, 2019 01:28:50 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
D’ANGELO NUNEZ,
Plaintiff,
v.
C.O. DURANGO, et al.,
Defendants.
)
)
)
)
)
)
)
18-CV-1018
OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
Plaintiff proceeds pro se from his incarceration in a federal
prison in Phoenix, Arizona. He alleges that after he arrived at the
Pekin Federal Correctional Institution, Defendants arranged for or
enabled other prisoners to steal Plaintiff’s property and to sell that
property to other prisoners in the Institution. Plaintiff seems to
allege that Defendants did this in retaliation for another lawsuit
filed by Plaintiff in Texas. See Nunez v. Jones, et al., 16-cv-00034
(E.D. Tex.). Plaintiff also alleges that one of the Defendants took a
cut of the money from the sale of Plaintiff’s stolen property. The
Court found that Plaintiff stated a retaliation claim and a due
process claim based on the alleged intentional deprivation of his
property.
Page 1 of 4
Defendants move for summary judgment, arguing that Plaintiff
failed to exhaust his administrative remedies. However, Defendants
do not explain what steps Plaintiff needed to take to exhaust his
remedies. Additionally, Defendants rely on a summary of Plaintiff’s
grievances and a summary of the fate of those grievances. The only
actual grievances and responses in the record are submitted by
Plaintiff. The documents submitted by Plaintiff show that Plaintiff
was instructed to file a tort claim, which he did. Administrative
remedies may be effectively unavailable if prison officials
“erroneously inform an inmate that the remedy does not exist or
inaccurately describe the steps he needs to take to pursue it.” Pavey
v. Conley, 663 F.3d 899, 906 (7th Cir. 2011). Defendants have not
met their burden of showing that Plaintiff failed to exhaust or that
an evidentiary hearing is required.
Defendants also argue that the Supreme Court case of Ziglar
v. Abbasi, 137 S.Ct. 1843 (2017) requires dismissal of Plaintiff’s
First Amendment retaliation claim. The Supreme Court in Zigler
declined to extend Bivens actions to claims by alien detainees
regarding their federal detention after the September 11 attacks.
The Court “expressed caution” about extending a Bivens remedy,
Page 2 of 4
recounting its history of restricting Bivens to a small subset of
constitutional violations by federal actors.
Defendants make strong arguments, but Defendants
acknowledge that the Seventh Circuit Court of Appeals has already
recognized, or at least assumed, a Bivens remedy for a federal
prisoner’s First Amendment retaliation claim. Babcock v. White,
102 F.3d 267 (7th Cir. 1996). Defendants may be correct that the
Seventh Circuit may reexamine this approach, but this Court is
bound to follow Seventh Circuit precedent. Additionally, this Court
may not need to even address the question if Plaintiff’s retaliation
claim fails on its merits. Defendants may raise the argument again
at the summary judgment stage.
IT IS THEREFORE ORDERED:
1)
Defendants’ motion for summary judgment on
exhaustion is denied. (d/e 17.)
2)
Plaintiff’s motion to file an amended complaint is denied
because Plaintiff has not attached his proposed amended
complaint. (d/e 29.) If Plaintiff seeks to file an amended complaint,
he must file a motion for leave, attaching the amended complaint
and explaining how the amended complaint is different from the
Page 3 of 4
original complaint. The proposed amended complaint must set
forth all claims against all defendants because, if allowed, the
amended complaint will completely replace the original complaint.
3)
The discovery stay is lifted.
4)
Discovery closes March 18, 2019.
5)
Dispositive motions are due April 15, 2019.
ENTERED: 1/8/2019
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
Page 4 of 4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?