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Duncan v. Nunez

United States District Court, W.D. Louisiana, Alexandria Division

October 17, 2019

MARCO DAMON DUNCAN, Plaintiff
v.
JOSE NUNEZ, ET AL., Defendants

          DRELL, JUDGE

          MEMORANDUM ORDER

          JOSEPH H.L. PEREZ-MONTES UNITED STATES MAGISTRATE JUDGE

         Before the Court is a Motion for Court Order Prohibiting Prison Officials from Interfering or Obstructing Litigation (Doc. 173) filed by pro se Plaintiff Marco Damon Duncan (“Duncan”) (#37679-048). Duncan alleges that Defendants are interfering with or obstructing this litigation by failing to provide him with a video and by interfering with his legal mail. (Doc. 173).

         Because Duncan has viewed the specific video surveillance footage at issue and presents only conclusory allegations regarding his mail, the Motion (Doc. 173) will be DENIED.

         I. Background

         Duncan initiated this litigation pursuant to Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics[1] (Docs. 1, 16, 20) alleging that he was subjected to excessive force when he was incarcerated at the United States Penitentiary in Pollock, Louisiana. In Duncan's Motion before the Court (Doc. 173), Duncan claims that Defendants have prevented him from viewing “specific video surveillance footage.” (Doc. 173, p. 1). Duncan also alleges that Defendants have interfered with the delivery and receipt of his mail by holding “his mail from the Court in excess of two weeks or more on a regular basis contrary to prison policy.” (Doc. 173, p. 2).

         II. Law and Analysis

         In his Motion, Duncan alleges that he has not viewed “video surveillance footage of the long version video and email video from January 13, 2017.” (Doc. 173-1, p. 1). Duncan further provides that: “Plaintiff was unable to view the DVD due to the fact that the substitute Counselor did not have the passcode to unlock the DVD for viewing.” (Doc. 173-1, p. 2).

         In response to Duncan's motion, Defendants allege that, “because of an issue with passwords and encryption, there was a delay in viewing certain videos. As of August 28, 2019, the plaintiff has had an opportunity to view all videos that federal defendants provided.” (Doc. 185, p. 1). Since Duncan has now reviewed the specific videos at issue, his request is MOOT.[2]

         Duncan's allegation that his mail is intentionally being delayed or withheld by Defendants is belied by the voluminous record in this case. For example, Defendants' response to the Motion before the Court (Doc. 185) was mailed to Duncan on September 3, 2019. (Doc. 185, p. 3). The Court received a reply to the response from Duncan on September 16, 2019. (Doc. 201). Thus, a document from Defendants was mailed to Duncan, received by Duncan, and a response from Duncan received by the Court all within 13 days. Additionally, Defendants filed a Motion to Dismiss, which was mailed to Duncan on September 27, 2019 (Doc. 211, p. 3). In his Motion for Extension of Time to respond, Duncan states that he received Defendants' Motion to Dismiss on October 1, 2019-just four days after it was mailed.

         Moreover, Duncan's allegation that prison officials are holding Duncan's mail is conclusory and unsupported by evidence. See, e.g., Damm v. Cooper, 288 Fed.Appx. 130, 132 (5th Cir. 2008) (conclusional statements and documents showing that some of Plaintiff's mail was sent from the prison but was not received by the addressees do not establish that Defendants actually interfered with outgoing mail); McCann v. Winn Corr. Ctr., 1:09-CV-2232, 2010 WL 2710402, at *4 (W.D. La. May 24, 2010), report and recommendation adopted, 2010 WL 2755092 (W.D. La. July 6, 2010) (conclusory and self-serving allegations concerning interference with the mail unsupported by the record).

         III. Conclusion

         Because Duncan's claim regarding the surveillance videos is moot and Duncan presents only conclusory allegations regarding his mail, IT IS ORDERED that Duncan's Motion for Court Order Prohibiting Prison ...


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