Branch v. Grannis, et al.,

Filing 91

ORDER GRANTING Plaintiff's 90 Motion; ORDER STRIKING Defendant's 87 Answer and 88 Motion to Dismiss; ORDER ADVISING Parties Not to Pursue Discovery on Behalf of Defendants Alvarez and Szalai at This Stage of the Proceedings, signed by Magistrate Judge Gary S. Austin on 6/7/2013. (Marrujo, C)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 LOUIS BRANCH, 10 ORDER GRANTING PLAINTIFF’S MOTION (Doc. 90.) Plaintiff, 11 12 1:08-cv-01655-AWI-GSA-PC vs. ORDER STRIKING DEFENDANT’S ANSWER AND MOTION TO DISMISS (Docs. 87, 88.) N. GRANNIS, et al., 13 Defendants. 14 ORDER ADVISING PARTIES NOT TO PURSUE DISCOVERY ON BEHALF OF DEFENDANTS ALVAREZ AND SZALAI AT THIS STAGE OF THE PROCEEDINGS 15 16 17 18 I. BACKGROUND 19 Louis Branch ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis 20 with this civil action. Plaintiff filed the Complaint commencing this action on July 7, 2008. 21 (Doc. 1.) This case now proceeds on the Second Amended Complaint filed by Plaintiff on 22 August 25, 2010, against defendant Umphenour and Does 1 and 2, for failure to protect 23 Plaintiff in violation of the Eighth Amendment, and against defendant Umphenour for 24 retaliation in violation of the First Amendment, in their individual capacities, for money 25 damages only.1 (Doc. 26.) 26 27 28 1 On May 11, 2011, the Court dismissed all other claims and defendants from this action, based on Plaintiff’s failure to state a claim. (Doc. 29.) The Doe defendants have not been sufficiently identified by Plaintiff to enable service of process by the U. S. Marshal. 1 1 On October 30, 2012, the court issued a Scheduling Order commencing discovery and 2 establishing deadlines in this action, including a deadline to amend pleadings of April 30, 2013, 3 and a discovery cut-off date of June 30, 2013. (Doc. 73.) On April 15, 2013, the court issued 4 an order extending the deadline to amend pleadings to May 31, 2013. (Doc. 84.) On April 22, 5 2013, Plaintiff filed a motion to amend the complaint and lodged a proposed third amended 6 complaint. (Docs. 86, 87.) Plaintiff’s motion to amend is currently pending. 7 On May 6, 2013, defendant Umphenour (“Defendant”) filed an Answer to the third 8 amended complaint and a motion to dismiss the third amended complaint in part. (Docs. 87, 9 88.) On June 5, 2013, Plaintiff filed a motion to stay Defendant’s Answer, motion to dismiss, 10 and discovery requests for defendants Alvarez and Szalai. (Doc. 90.) Plaintiff’s motion is now before the court. 11 12 II. PLAINTIFF’S MOTION 13 Plaintiff argues that Defendant’s Answer and motion to dismiss were prematurely filed 14 because the court has not ruled on Plaintiff’s motion to file the third amended complaint. 15 Plaintiff also argues that Defendant’s discovery requests on behalf of defendants Alvarez and 16 Szalai are premature and inappropriate. Plaintiff asserts that on May 10, 2013, Defendant 17 served interrogatories, a request for admissions, and a request for production of documents 18 upon Plaintiff on behalf of unserved defendants Alvarez and Szalai. 19 Plaintiff correctly argues that Defendant’s Answer, motion to dismiss, and discovery 20 requests are premature and inappropriate. Because the court has not ruled on Plaintiff’s motion 21 to amend, and the proposed third amended complaint has not been filed, this case currently 22 proceeds on the Second Amended Complaint filed on August 25, 2010, against defendant 23 Umphenour and Does 1 and 2. Defendant’s discovery requests on behalf of defendants Alvarez 24 and Szalai are likewise inappropriate, because those defendants have not been added to 25 Plaintiff’s complaint, served with process, or appeared in this action. 26 III. CONCLUSION 27 Based on the foregoing, IT IS HEREBY ORDERED that: 28 1. Plaintiff’s motion, filed on June 5, 2013, is GRANTED; 2 1 2 2. STRICKEN from the record; 3 4 Defendant’s Answer to the third amended complaint, filed on May 6, 2013, is 3. Defendant’s motion to dismiss, filed on May 6, 2013, is STRICKEN from the record; and 5 4. The parties shall not pursue discovery on behalf of defendants Alvarez and 6 Szalai at this stage of the proceedings, and Plaintiff may disregard any pending discovery 7 requests which have been served upon him by Defendant on behalf of defendants Alvarez and 8 Szalai. 9 10 11 12 IT IS SO ORDERED. Dated: 13 14 15 June 7, 2013 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE DEAC_Signature-END: 6i0kij8d 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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