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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LOUIS BRANCH,

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ORDER GRANTING PLAINTIFF’S
MOTION
(Doc. 90.)

Plaintiff,

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1:08-cv-01655-AWI-GSA-PC

vs.

ORDER STRIKING DEFENDANT’S
ANSWER AND MOTION TO DISMISS
(Docs. 87, 88.)

N. GRANNIS, et al.,

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Defendants.

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ORDER ADVISING PARTIES NOT TO
PURSUE DISCOVERY ON BEHALF OF
DEFENDANTS ALVAREZ AND SZALAI
AT THIS STAGE OF THE PROCEEDINGS

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I.

BACKGROUND

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Louis Branch ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis

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with this civil action. Plaintiff filed the Complaint commencing this action on July 7, 2008.

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(Doc. 1.) This case now proceeds on the Second Amended Complaint filed by Plaintiff on

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August 25, 2010, against defendant Umphenour and Does 1 and 2, for failure to protect

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Plaintiff in violation of the Eighth Amendment, and against defendant Umphenour for

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retaliation in violation of the First Amendment, in their individual capacities, for money

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damages only.1 (Doc. 26.)

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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.
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On October 30, 2012, the court issued a Scheduling Order commencing discovery and

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establishing deadlines in this action, including a deadline to amend pleadings of April 30, 2013,

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and a discovery cut-off date of June 30, 2013. (Doc. 73.) On April 15, 2013, the court issued

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an order extending the deadline to amend pleadings to May 31, 2013. (Doc. 84.) On April 22,

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2013, Plaintiff filed a motion to amend the complaint and lodged a proposed third amended

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complaint. (Docs. 86, 87.) Plaintiff’s motion to amend is currently pending.

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On May 6, 2013, defendant Umphenour (“Defendant”) filed an Answer to the third

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amended complaint and a motion to dismiss the third amended complaint in part. (Docs. 87,

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88.) On June 5, 2013, Plaintiff filed a motion to stay Defendant’s Answer, motion to dismiss,

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and discovery requests for defendants Alvarez and Szalai. (Doc. 90.)
Plaintiff’s motion is now before the court.

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II.

PLAINTIFF’S MOTION

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Plaintiff argues that Defendant’s Answer and motion to dismiss were prematurely filed

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because the court has not ruled on Plaintiff’s motion to file the third amended complaint.

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Plaintiff also argues that Defendant’s discovery requests on behalf of defendants Alvarez and

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Szalai are premature and inappropriate. Plaintiff asserts that on May 10, 2013, Defendant

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served interrogatories, a request for admissions, and a request for production of documents

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upon Plaintiff on behalf of unserved defendants Alvarez and Szalai.

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Plaintiff correctly argues that Defendant’s Answer, motion to dismiss, and discovery

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requests are premature and inappropriate. Because the court has not ruled on Plaintiff’s motion

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to amend, and the proposed third amended complaint has not been filed, this case currently

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proceeds on the Second Amended Complaint filed on August 25, 2010, against defendant

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Umphenour and Does 1 and 2. Defendant’s discovery requests on behalf of defendants Alvarez

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and Szalai are likewise inappropriate, because those defendants have not been added to

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Plaintiff’s complaint, served with process, or appeared in this action.

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III.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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Plaintiff’s motion, filed on June 5, 2013, is GRANTED;
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STRICKEN from the record;

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Defendant’s Answer to the third amended complaint, filed on May 6, 2013, is

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Defendant’s motion to dismiss, filed on May 6, 2013, is STRICKEN from the

record; and

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4.

The parties shall not pursue discovery on behalf of defendants Alvarez and

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Szalai at this stage of the proceedings, and Plaintiff may disregard any pending discovery

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requests which have been served upon him by Defendant on behalf of defendants Alvarez and

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Szalai.

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IT IS SO ORDERED.
Dated:

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June 7, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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