United States District Court, D. Minnesota
Raphael Mendez, pro se.
M. Secord, Assistant United States Attorney, United States
Attorney's Office, Minneapolis, MN, on behalf of
MEMORANDUM OPINION AND ORDER
MONTGOMERY U.S. DISTRICT JUDGE
matter is before the undersigned United States District Judge
for a ruling on Plaintiff Raphael Mendez's
(“Mendez”) Objection [Docket No. 40] to
Magistrate Judge Becky R. Thorson's Report and
Recommendation [Docket No. 39] (“R&R”). In
the R&R, Judge Thorson recommends granting Defendants
Warden L. LaRiva (“Warden LaRiva”), Supervisory
Attorney K. Lundy (“Lundy”), and Unknown Inmate
Legal Mail Room Servers' (collectively,
“Defendants”) Motion to Dismiss or for Summary
Judgment [Docket No. 24]. For the reasons set forth below,
Mendez's Objection is overruled, the R&R is adopted,
and Defendants' Motion to Dismiss or for Summary Judgment
is currently incarcerated at the Federal Medical Center in
Rochester, Minnesota (“FMC Rochester”). See
Mendez v. Dole, Civ. No. 16-2644, 2017 WL 3730995, at *1
(D. Minn. Aug. 29, 2017). Mendez was indicted in the U.S.
Virgin Islands in 1990 for assault, possession of an
unlicensed firearm during the commission of a violent crime,
and possession of a firearm by a felon. See Mendez v.
Bureau of Prisons, No. 08-4971, 2009 WL 3856925, at *1
(D. Minn. Nov. 17, 2009). After he was determined to be
incompetent to stand trial, Mendez was transferred to the
Federal Medical Center in Butner, North Carolina for a period
of restoration. Id. Pursuant to the procedures in 18
U.S.C. § 4246, Mendez was not restored to competency,
and in 1991 he was civilly committed in the Eastern District
of North Carolina. Id.
Virgin Islands Lawsuit
March 7, 2016, Mendez filed a petition for mandamus with the
Virgin Islands District Court. Secord Decl. [Docket No. 27]
¶ 4; Ex. B. The lawsuit seeks information and documents
regarding the circumstances underlying his civil commitment.
1, 2016, the Virgin Islands District Court denied
Mendez's motion to proceed in forma pauperis
(“IFP”) until he filed a certified copy of
certain financial information. Secord Decl. Ex. E. The Virgin
Islands Court sent Mendez a hard copy of this order via
certified mail. Id. Ex. F.
2, 2016, Mendez filed a mandamus petition directly with the
Third Circuit Court of Appeals. Id. Ex. P. On June
29, 2016, the Third Circuit denied the petition, noting that
District Court recently attempted to correspond with Mendez,
although the mail, sent to him at the most recent address he
provided (P.O. Box 4000, Rochester, MN, 55903) was refused at
its desitination and returned to sender. The District Court
may wish to resend the mail to a complete address which
includes FMC-Rochester and Mendez's Bureau of
Prison's register number, or Mendez may need to verify or
update his address.
Id. Ex. H at 3 n.1.
alleges that in November 2016, he was notified by a telephone
call from the Virgin Islands District Court that the June 1,
2016 order denying his IFP application was returned
undelivered. Am. Compl. [Docket No. 10] 3. Mendez claims that
as a result, his lawsuit was dismissed without prejudice.
Id. On November 3, 2016, Mendez notified the Virgin
Islands District Court that he did not receive the June 1,
2016 order. Secord Decl. Ex. I. Mendez filed a new IFP
application and requested to proceed with his ...