Nunez v. Durango et al

Filing 5

MERIT REVIEW OPINION: Pursuant to its merit review of the Complaint under 28 U.S.C. § 1915A, the Court finds that Plaintiff states a retaliation claim and a due process claim based on the alleged intentional deprivation of his property. This ca se proceeds solely on the claims identified in this paragraph. Any additional claims shall not be included in the case, except at the Court's discretion on motion by a party for good cause shown or pursuant to Federal Rule of Civil Procedure 15. This case is now in the process of service. Rule 16 Deadline 4/23/2018. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 2/22/2018. (ME, ilcd)

E-FILED

Thursday, 22 February, 2018 10:07:27 AM
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.

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18-CV-1018

MERIT REVIEW OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
Plaintiff proceeds pro se from his incarceration in a federal
prison in Phoenix, Arizona. His Complaint, which concerns
incidents in a federal prison in Pekin, Illinois, is before the Court for
a merit review pursuant to 28 U.S.C. § 1915A. This section
requires the Court to identify cognizable claims stated by the
Complaint or dismiss claims that are not cognizable.1 In reviewing
the complaint, the Court accepts the factual allegations as true,
liberally construing them in Plaintiff's favor and taking Plaintiff’s
pro se status into account. Turley v. Rednour, 729 F.3d 645, 649
(7th Cir. 2013). However, conclusory statements and labels are

1

 A prisoner  who has had three prior actions dismissed for failure to state a claim or as frivolous or malicious can 
no longer proceed in forma pauperis unless the prisoner is under “imminent danger of serious physical injury.”  28 
U.S.C. § 1915(g). 

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insufficient. Enough facts must be provided to "'state a claim for
relief that is plausible on its face.'" Alexander v. U.S., 721 F.3d
418, 422 (7th Cir. 2013)(quoted cite omitted).
Plaintiff 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 which remains pending. 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.
Plaintiff arguably states a due process claim based on the
intentional deprivation of his property. The claim may not be viable
if Plaintiff had other post-deprivation remedies available to him,
Hudson v. Palmer, 468 U.S. 517, 533 (1984), but that cannot be
determined on the present record. As for his retaliation claim,
Plaintiff does not explain the basis for his belief that Defendants,
who work at the federal prison in Illinois, would harbor retaliatory
motive for a lawsuit filed in Texas against different Defendants
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about an incident that occurred in 2012. For now, though, both
claims will remain in the case, subject to a motion to dismiss.
IT IS THEREFORE ORDERED:
1)

Pursuant to its merit review of the Complaint under 28

U.S.C. § 1915A, the Court finds that Plaintiff states a retaliation
claim and a due process claim based on the alleged intentional
deprivation of his property.

This case proceeds solely on the claims

identified in this paragraph. Any additional claims shall not be
included in the case, except at the Court’s discretion on motion by a
party for good cause shown or pursuant to Federal Rule of Civil
Procedure 15.
2)

This case is now in the process of service. Plaintiff is

advised to wait until counsel has appeared for Defendants before
filing any motions, in order to give Defendants notice and an
opportunity to respond to those motions. Motions filed before
Defendants' counsel has filed an appearance will generally be
denied as premature. Plaintiff need not submit any evidence to the
Court at this time, unless otherwise directed by the Court.
3)

The Court will attempt service on Defendants by mailing

each Defendant a waiver of service. Defendants have 60 days from
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the date the waiver is sent to file an Answer. If Defendants have not
filed Answers or appeared through counsel within 90 days of the
entry of this order, Plaintiff may file a motion requesting the status
of service. After Defendants have been served, the Court will enter
an order setting discovery and dispositive motion deadlines.
4)

With respect to a Defendant who no longer works at the

address provided by Plaintiff, the entity for whom that Defendant
worked while at that address shall provide to the Clerk said
Defendant's current work address, or, if not known, said
Defendant's forwarding address. This information shall be used
only for effectuating service. Documentation of forwarding
addresses shall be retained only by the Clerk and shall not be
maintained in the public docket nor disclosed by the Clerk.
5)

Defendants shall file a responsive pleading within 60

days of the date the waiver is sent by the Clerk.
6)

This District uses electronic filing, which means that,

after Defense counsel has filed an appearance, Defense counsel will
automatically receive electronic notice of any motion or other paper
filed by Plaintiff with the Clerk. Plaintiff does not need to mail to
Defense counsel copies of motions and other papers that Plaintiff
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has filed with the Clerk. However, this does not apply to discovery
requests and responses. Discovery requests and responses are not
filed with the Clerk. Plaintiff must mail his discovery requests and
responses directly to Defendants' counsel. Discovery requests or
responses sent to the Clerk will be returned unfiled, unless they are
attached to and the subject of a motion to compel. Discovery does
not begin until Defense counsel has filed an appearance and the
Court has entered a scheduling order, which will explain the
discovery process in more detail.
7)

Counsel for Defendants is hereby granted leave to depose

Plaintiff at his place of confinement. Counsel for Defendants shall
arrange the time for the deposition.
8)

Plaintiff shall immediately notify the Court, in writing, of

any change in his mailing address and telephone number.
Plaintiff's failure to notify the Court of a change in mailing address
or phone number will result in dismissal of this lawsuit, with
prejudice.
9)

If a Defendants fails to sign and return a waiver of service

to the clerk within 30 days after the waiver is sent, the Court will
take appropriate steps to effect formal service through the U.S.
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Marshal's service on that Defendant and will require that Defendant
to pay the full costs of formal service pursuant to Federal Rule of
Civil Procedure 4(d)(2).
10)

The clerk is directed to enter the standard order

granting Plaintiff's in forma pauperis petition and assessing an
initial partial filing fee, if not already done.
11)

The clerk is directed to send waivers of service to

Defendants at the Pekin Federal Correctional Institution.
12)

The clerk is directed to serve the United States

pursuant to Fed. R. Civ. P. 4(i)(1) by: (1) sending a copy of the
Complaint and this order to the United States Attorney for the
Central District; and, (2) by sending a copy of the Complaint
and this order to the Attorney General of the United States at
Washington, D.C.
ENTERED: 2/22/2018
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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