Bell v. Heberling et al

Filing 41

ORDER Denying Plaintiff's Motion for Discovery 40 , signed by Magistrate Judge Stanley A. Boone on 5/6/14. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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HORACE BELL,

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Plaintiff,

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v.
S HEBERLING, et al.,

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Defendants.

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Case No.: 1:12-cv-01248-AWI-SAB (PC)
ORDER DENYING PLAINTIFF’S
MOTION FOR DISCOVERY
[ECF No. 40]

Plaintiff Horace Bell is appearing pro se in this civil rights action pursuant to 42 U.S.C. §

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1983.

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Now pending before the Court is Plaintiff’s motion for discovery, filed May 5, 2014.

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Plaintiff filed the instant complaint on March 21, 2012, in the Kings County Superior Court.

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On July 27, 2012, the complaint was removed from the Kings County Superior Court to this Court by

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defendants S. Heberling and J. Scheer.

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On November 8, 2013, the Court screened and dismissed plaintiff’s complaint, with leave to
amend, for failure to state a cognizable claim for relief. ECF No. 33; 28 U.S.C. § 1915A(a).
Plaintiff filed a first amended complaint on November 20, 2013. On January 24, 2014, the

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undersigned issued Findings and Recommendations recommending that the action proceed solely on

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Plaintiff’s Eighth Amendment claim against defendants S. Heberling, J. Sheer, and E. Nesmith, and all

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other claims and defendants be dismissed from the action for failure to state a cognizable claim.
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Plaintiff filed objections to the Findings and Recommendations on February 24, 2014. The
District Judge has yet to rule on the Findings and Recommendations.

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Plaintiff’s motion for discovery must be DENIED as premature. As Plaintiff was advised in

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the Court’s First Information Order, “[a]fter an answer is filed, the court will issue an order opening

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discovery and setting the deadlines for completing discovery, amending the pleadings, and filing pre-

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trial dispositive motions. No discovery may be conducted without court permission until an answer is

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filed and the court issues the discovery order.” (ECF No. 7 at ¶ 8, emphasis in original.) Because no

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answer to the complaint has been filed or is required to be filed by defendants, the discovery phase of

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this action is not open, and Plaintiff’s motion for discovery shall be DENIED as premature. In

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addition, Plaintiff is reminded that discovery propounded on a party is self-executing, and must be

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served directly on the party from whom discovery is sought, and parties should not file copies of their

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discovery with the court. (ECF No. 7 at ¶ 8; Local Rules 250.2, 250.3, 250.4.)

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Based on the foregoing, Plaintiff motion for discovery is DENIED.

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IT IS SO ORDERED.
Dated:

May 6, 2014
UNITED STATES MAGISTRATE JUDGE

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