Nunez v. Wertz et al

Filing 35

MEMORANDUM (Order to follow as separate docket entry) re 28 MOTION for Reconsideration re 21 Order on Motion to Stay,, filed by Fernando Nunez, 31 MOTION for Reconsideration re 27 Order on Motion to Stay, filed by Fernando Nunez Signed by Honorable A. Richard Caputo on 3/18/16. (jam)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
FERNANDO NUNEZ,
Plaintiff
v.
CO WERTZ, et al.,
Defendants

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CIVIL NO. 3:CV-14-0727
(Judge Caputo)

MEMORANDUM
I.

Introduction
Pending before the Court are two motions filed by Mr. Nuñez seeking

reconsideration of the Court’s Order granting Defendants’ Britton, Hazlett and Wertz’
motion to stay discovery pending the court’s resolution of their motion to dismiss.
(Docs. 28 and 31.) A third motion, seeking an enlargement of time to provide the
Court with the appropriate information to effectuate service on the “Householder
Brothers” (Doc. 30) relates, in part, to Mr. Nuñez’s motion for reconsideration of the
order to stay discovery.
For the reasons that follow, Mr. Nuñez’s motion for reconsideration will be
denied. However, to the extent possible, defense counsel shall provide Mr. Nuñez
with the names of the Property Officers who signed his Inmate Personal Property
Inventory Sheet on November 6, 2011 and November 14, 2011. See Doc. 30 and
Doc. 19-2, ECF p. 3.

II.

Background
Fernando Nunez, filed this civil rights action on April 8, 2014. (Doc. 1.) In his

Complaint Mr. Nunez alleges, inter alia, that Wertz and Hazlett in the presence of
Britton, confiscated and destroyed his legal materials, and consequently interfered
with his access to the courts, in retaliation for his filing of prison grievances. He also
claims that Wertz “trashed his cell” and defamed his character by calling him a
“snitch” in retaliation for his filing of grievances. Other Pennsylvania Department of
Corrections (DOC) defendants are alleged to have searched his cell under false
pretenses in retaliation for filing grievances about the unsanitary conditions of the
dining hall. Nunez claims he was forced to breathe “metallic fumes” while the
prison’s dining hall was being renovated. Nunez’s final claim is that Fisher, aware of
these various nefarious actions, failed to intervene but instead arranged to Nunez to
be transferred to another correctional facility further away from his home, away from
his high-paying prison job and vocational trade. (Id.)
On May 5, 2014, the Court entered an order directing service of the
Complaint on the named defendants. (Doc. 7.) On July 25, 2014, the Waiver of
Service directed to “the Householder Brothers” was returned unexecuted with the
notation “unable to serve.” (Doc. 9.) The DOC defendants filed a partial motion to
dismiss the complaint. (Doc. 11.) Upon the request of the defendants, discovery
was stayed pending resolution of their partial motion to dismiss. (Docs. 21 and 27.)
On August 24, 2014, Mr. Nuñez was directed to provide the Court with
sufficient information for the Marshal to effect service on the Householder Brothers.
(Doc. 13.) At Mr. Nuñez’s request, he was granted until October 30, 2014, to
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provide the relevant information. (Doc. 20.) On October 30, 2014, Mr. Nuñez filed
a second request for enlargement of time to provide the needed information to
served the Householder Brothers. (Doc. 30.) His request for additional time is
based on his need for defendants to decipher the name of the Property Officers who
signed his Inmate Personal Property Inventory Sheet on November 6, 2011 and
November 14, 2011. See Doc. 30 and Doc. 19-2, ECF p. 3.
Recently the Court dismissed without prejudice the Defendants’ Partial
Motion to Dismiss based on Mr. Nuñez’s desire to file an Amended Complaint.
Presently there is no standing complaint in this action.

III.

Standard of Review
The court’s order to stay discovery as to Britton, Hazlett, Werts, Eichenlaub

and Fisher is interlocutory. See Fed. R. Civ. P. 54(a) and (b). As an interlocutory
order, it is subject to revision "when consonant with justice to do so." See United
States v. Jerry, 487 F.2d 600, 605 (3d Cir. 1973); Gridley v. Cleveland Pneumatic
Co., 127 F.R.D. 102, 103 (M.D. Pa. 1989) (quoting Jerry); Philadelphia Reserve
Supply Co. v. Nowalk & Associates, Inc., 864 F. Supp. 1456, 1460-61 (E.D. Pa.
1994). See also Gallant v. Telebrands Corp., 35 F. Supp. 2d 378, 394 (D. N.J.
1998).

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IV.

Discussion
“A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of a

claim, and therefore may be decided on its face without extensive factual
development.” Mann v. Brenner, 375 F. App’x 232, 239 (3d Cir. 2010). Motions to
dismiss “should typically be resolved before discovery begins.” Levey v.
Brownstone Inv. Group, LLC, No. 13-3251, 2014 WL 5369394, *4 (3d Cir. Oct. 23,
2014). Here, when the Court stayed discovery in this matter, Defendants had filed a
partial motion to dismiss the Complaint. In response to the motion, Mr. Nuñez
requested leave to file an amended complaint. The Court has dismissed the
Defendants’ partial motion to dismiss without prejudice to allow Mr. Nuñez to file an
amended complaint.
At this point, as there is no standing complaint to define the scope any
discovery relevant to these proceedings. Furthermore, as with his original
Complaint, his amended complaint will be subject to testing for legal sufficiency by
the Court pursuant to 28 U.S.C. § 1915, and the Defendants pursuant to Fed. R.
Civ. P. 12(b)(6). Accordingly, based on the procedural posture of this case, that
being Mr. Nuñez has yet to file his amended complaint, his motion for
reconsideration of the Court’s order granting Defendants’ Stay of Discovery (Docs.
21 and 27) is denied. However, given his pro se status and his obligation to provide
the Court with accurate information so the Court may serve the Householder
Brothers, the Court will grant his limited request to have Defendants decipher the
names of the officers who signed his Inmate Personal Property Inventory Sheet on

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November 6, 2011 and November 14, 2011. See Doc. 30 and Doc. 19-2, ECF p. 3.
An appropriate Order follows.

/s/ A. Richard Caputo
A. RICHARD CAPUTO
United States District Judge

Date: March 18, 2016

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