Goolsby v. Gonzales et al
Filing
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ORDER Denying Plaintiff's Motion To Open Discovery (Doc. 38 ), signed by Magistrate Judge Gary S. Austin on 6/25/2014. (Fahrney, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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THOMAS GOOLSBY,
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Plaintiff,
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1:11-cv-00394-LJO-GSA-PC
ORDER DENYING PLAINTIFF=S
MOTION TO OPEN DISCOVERY
(Doc. 38.)
vs.
FERNANDO GONZALES, et al.,
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Defendants.
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I.
BACKGROUND
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Thomas Goolsby (“Plaintiff”) is a state prisoner proceeding pro se and in forma
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pauperis with this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the
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Complaint commencing this action on March 8, 2011. (Doc. 1.) This case now proceeds on
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Plaintiff’s First Amended Complaint, filed on September 17, 2012, against defendant T.
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Steadman (“Defendant”) for retaliation in violation of the First Amendment.1 (Doc. 13.)
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On April 17, 2014, Defendant filed a motion to declare Plaintiff a vexatious litigant and
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require payment of security. (Doc. 31.) On May 29, 2014, the court entered findings and
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recommendations, recommending that Defendant’s motion be denied. (Doc. 37.) The parties
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On April 22, 2013, the court dismissed all remaining claims and defendants from this action based on
Plaintiff’s failure to state a claim. (Doc. 17.)
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were allowed thirty days in which to file objections to the findings and recommendations. Id.
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To date, no objections have been filed.
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On June 9, 2014, Plaintiff filed a motion for the court to open discovery in this action.
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(Doc. 38.) On June 12, 2014, Defendant filed an opposition to the motion. (Doc. 40.) On June
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23, 2014, Plaintiff filed a reply to the opposition. (Doc. 41.)
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II.
MOTION TO OPEN DISCOVERY
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Plaintiff requests the court to open discovery in this action, because evidence vital to
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Plaintiff’s case may be lost, as it has been more than four years since the incident underlying
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the complaint occurred. Plaintiff argues that discovery should proceed because Defendant is in
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poor health and time is of the utmost importance. Plaintiff also notes that Defendant’s motion
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to declare Plaintiff a vexation litigant and require security is no longer at issue because it was
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denied by the court.
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In opposition, Defendant argues that Plaintiff’s motion is premature, because Defendant
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has not yet filed an answer to the First Amended Complaint. Defendant argues that the motion
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to declare Plaintiff a vexatious litigant and require security was not an answer to the complaint.
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Defendant also argues that Plaintiff is mistaken in his assertion that the motion to declare
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Plaintiff a vexatious litigant and require security is resolved, because the court’s findings and
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recommendations remain pending.
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In reply, Plaintiff argues that Defendant is stalling and has chosen not to file an answer,
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causing prejudice to Plaintiff by delaying discovery which is inevitable. Plaintiff argues that
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the filing of an answer will not affect Plaintiff’s discovery or Plaintiff’s claims.
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Discussion
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The discovery phase of this litigation is not yet open. Plaintiff is directed to paragraph
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eight of the court's First Informational Order, filed on March 10, 2011. (Doc. 2 at 4 ¶ 8.) In
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that order, Plaintiff was specifically informed that he may not conduct discovery until
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defendants file an answer and the court issues the discovery order. Defendant Steadman’s
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motion to declare Plaintiff a vexatious litigant and require security is not an answer. The court
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will issue a scheduling order setting a schedule for discovery after Defendant has filed an
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answer to the complaint. Plaintiff’s request to open discovery at this stage of the proceedings
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shall be denied.
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III.
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CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s motion to open
discovery, filed on June 9, 2014, December 2, 2013, is DENIED.
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IT IS SO ORDERED.
Dated:
June 25, 2014
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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