Jackson v. California Department of Corrections & Rehabilitation et al

Filing 38

ORDER signed by Magistrate Judge Sandra M. Snyder on 2/4/2010 denying 37 Motion as premature. (Lundstrom, T)

1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Fateem L. Jackson, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on September 27, 2007. This action is proceeding on Plaintiff's amended complaint, filed June 24, 2008, against Defendants Selbach, Rubin, Ortiz, Payan, Pantoja, Wood, Yoder, Fernandez, Carrasco, and Zanchi for violating Plaintiff's rights under the Fourth and Fourteenth Amendments of the United States Constitution. Defendants Selbach, Rubin, Payan, Pantoja, Wood, Yoder, Carrasco, and Zanchi waived service and filed a motion to dismiss on November 23, 2009, but the United States Marshal was unable to identify and serve Defendants Ortiz and Fernandez. On February 1, 2010, Plaintiff filed a motion seeking leave to conduct discovery to gather further information so that Defendants Ortiz and Fernandez may be served with process. Plaintiff's claims against Defendants Ortiz and Fernandez arise from the same events as his claims against Defendants Selbach, Rubin, Payan, Pantoja, Wood, Yoder, Carrasco, and Zanchi. Therefore, resolution of Defendants Selbach, Rubin, Payan, Pantoja, Wood, Yoder, Carrasco, and Zanchi's motion to dismiss for failure to exhaust and on qualified immunity grounds will affect 1 v. (Doc. 37) CDCR EMPLOYEES, et al., Defendants. / FATEEM L. JACKSON, Plaintiff, CASE NO. 1:07-cv-01414-LJO-SMS PC ORDER DENYING MOTION AS PREMATURE

UNITED STATES DISTRICT COURT

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whether or not Plaintiff's claims against Ortiz and Fernandez remain viable.1 If the motion to dismiss is granted based on Plaintiff's failure to exhaust or because Defendants are entitled to qualified immunity, Plaintiff's claims against all of the named defendants will be dismissed. If the motion is denied, Defendants Selbach, Rubin, Payan, Pantoja, Wood, Yoder, Carrasco, and Zanchi will be directed to file an answer, at which point a scheduling order will be issued, allowing Plaintiff to initiate discovery and submit further information regarding Defendants Ortiz and Fernandez. Because the continued viability of Plaintiff's claims against Defendants Ortiz and Fernandez is dependent upon resolution of Defendants Selbach, Rubin, Payan, Pantoja, Wood, Yoder, Carrasco, and Zanchi's pending motion to dismiss, Plaintiff's motion to open discovery at this juncture to obtain further information on Defendants Ortiz and Fernandez is premature and is HEREBY ORDERED DENIED on that ground.

IT IS SO ORDERED. Dated: icido3 February 4, 2010 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE

Plaintiff's opposition to the motion to dismiss was filed on February 1, 2010. Defendants were apparently p r e v io u s ly served with the opposition, as they filed their reply on January 14, 2010. The motion to dismiss is d e e m e d submitted, and will be resolved in due course. Local Rule 230(l).

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