Bowell v. Montoya et al

Filing 59

ORDER of Clarification 57 ; ORDER VACATING Discovery and Scheduling Order Issued on November 8, 2019 55 , signed by Magistrate Judge Gary S. Austin on 12/2/2019. (Martin-Gill, S)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

JAMES BOWELL,
Plaintiff,

12

vs.

13
14

F. MONTOYA, et al.,
Defendants.

15

1:17-cv-00605-LJO-GSA-PC
ORDER OF CLARIFICATION
(ECF No. 57.)
ORDER VACATING DISCOVERY AND
SCHEDULING ORDER ISSUED ON
NOVEMBER 8, 2019
(ECF No. 55.)

16
17
18

I.

BACKGROUND

19

James Bowell (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

20

with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with Plaintiff’s

21

First Amended Complaint, filed on May 3, 2018, against defendants Montoya and Carter for

22

violation of due process under the Fourteenth Amendment, and against defendants Killmer and

23

Lopez for conspiracy to place Plaintiff at risk of serious harm, and additionally for failure to

24

protect Plaintiff under the Eighth Amendment. (ECF No. 16.)1

25
26

On November 27, 2019, Defendants filed a request for clarification regarding the court’s
Discovery and Scheduling Order issued on November 8, 2019. (ECF No. 57.)

27
28

1
On October 25, 2018, the court issued an order dismissing all other claims and defendants from
this case, for Plaintiff’s failure to state a claim. (ECF No. 20.)

1

1

II.

2
3

DEFENDANTS’ REQUEST FOR CLARIFICATION
Defendants request clarification as to whether the 120-day stay of discovery, ordered by

the court on October 18, 2019, remains in effect.

4

Defendants correctly state that on October 18, 2019, the court granted Plaintiff “one

5

hundred-twenty days from the date of service of this order before discovery is opened in this

6

case;” i.e., until February 15, 2020. (ECF No. 52 at 2.) However, on November 8, 2019, the

7

court issued a Discovery and Scheduling Order which sets out deadlines for the parties, including

8

a discovery deadline, but does not address the stay on discovery. (ECF No. 55.)

9

As clarification, the court acknowledges that the Discovery and Scheduling Order should

10

not have been issued in this case on November 8, 2019. The 120-day stay of discovery granted

11

to Plaintiff on October 18, 2019, remains in effect. The court shall vacate the Discovery and

12

Scheduling Order and issue a new scheduling order after the 120-day stay of discovery has ended.

13

III.

CONCLUSION

14

Based on the foregoing, IT IS HEREBY ORDERED that:

15

1.

16
17

this order;
2.

18
19

The 120-day stay of discovery granted to Plaintiff on October 18, 2019, remains
in effect;

3.

20
21

Defendants’ request for clarification, filed on November 27, 2019, is granted by

The court’s Discovery and Scheduling Order, issued on November 8, 2019, is
VACATED from the record; and

4.

22

The court shall issue a new Discovery and Scheduling order after the 120-day stay
of discovery has ended.

23
24
25
26

IT IS SO ORDERED.
Dated:

December 2, 2019

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

27
28
2