Thomas v. Lewis et al

Filing 21

ORDER GRANTING Plaintiff's Motion to Extend Time to File Second Amended Complaint; ORDER DENYING Motion to Compel 19 , 20 , signed by Magistrate Judge Erica P. Grosjean on 1/24/17: 90-Day Deadline . (Attachments: # 1 Amended Complaint - blank form) (Hellings, J)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOHNNY C. THOMAS, Plaintiff, 12 13 v. 14 J. LEWIS, et al., 15 1:16-cv-00524-EPG (PC) ORDER GRANTING PLAINTIFF’S MOTION TO EXTEND TIME TO FILE SECOND AMENDED COMPLAINT (ECF No. 19) Defendants. NINETY-DAY DEADLINE 16 ORDER DENYING MOTION TO COMPEL DISCOVERY 17 (ECF No. 20) 18 19 20 21 22 Johnny C. Thomas (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. complaint on April 14, 2016. (ECF No. 1). Plaintiff filed his initial On November 1, 2016, the Court issued an order finding that Plaintiff stated a cognizable claim for deliberate indifference to serious medical needs 23 against a “John Doe” Defendant, an unknown surgeon at Kern Valley State Prison (“KVSP”) who 24 removed a cyst from Plaintiff’s mouth. (ECF No. 15.) The Court also found that service of the 25 First Amended Complaint was not yet appropriate because the John Doe defendant has not yet 26 been identified. (Id.) Therefore, the Court granted Plaintiff ninety days to identify the John Doe 27 28 1 1 2 3 4 5 defendant and stated that Plaintiff may request leave issuance of any third party subpoenas, including on the California Department of Corrections and Rehabilitation (“CDCR”). (Id.) On December 7, 2016, the Court granted Plaintiff’s request to issue a subpoena duces tecum to be served upon the Litigation Coordinator at Kern Valley State Prison. (ECF No. 17 at 3.) That order directed the U.S. Marshal’s Office to serve the subpoena within 20 days and file a return of service after completion of service. (Id.) The issued subpoena had a compliance date of 6 February 6, 2017 at 5:00 p.m. 7 8 9 10 11 12 13 14 15 16 On January 17, 2017, Plaintiff filed two motions: 1) a motion to extend time to file a Second Amended Complaint (ECF No. 19); and 2) a motion for an order compelling discovery (ECF No. 20). The Court finds good cause to grant the motion for an extension of time to file a Second Amended Complaint. (ECF No. 19.) Plaintiff is granted ninety (90) days from the date of service of this order in which to file a Second Amended Complaint. As to the motion to compel discovery (ECF No. 20), the Court denies the motion as premature. The U.S. Marshal has not yet filed a return of service so it is unclear at this point as to whether service has been successfully effectuated. Even if proof of service had been returned, the subpoena had a compliance date of February 6, 2017.1 17 18 19 IT IS SO ORDERED. Dated: January 24, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 1 It should be noted that Plaintiff has also requested monetary sanctions in the amount $5,000 for “his reasonable expenses in obtaining this order.” (ECF No. 20 at 2.) While Plaintiff understandably places a high value on the time he used to draft his motion, he is advised that the Court does not look favorably upon unsubstantiated or frivolous requests for monetary sanctions. 2

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