Barbour v. United States of America

Filing 40

ORDER DENYING 39 Plaintiff's Motion for Order Opening Discovery as Premature signed by Magistrate Judge Barbara A. McAuliffe on 10/8/2020. (Jessen, A)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

EASTERN DISTRICT OF CALIFORNIA

7
8

SCOTT BARBOUR,

9
10
11
12

Plaintiff,
v.
UNITED STATES OF AMERICA,

Case No. 1:18-cv-00246-NONE-BAM (PC)
ORDER DENYING PLAINTIFF’S MOTION FOR
ORDER OPENING DISCOVERY AS
PREMATURE
(ECF No. 39)

Defendant.

13
14
15
16

Plaintiff Scott Barbour (“Plaintiff”) is a federal prisoner proceeding pro se and in forma
pauperis in this civil rights action pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346(b).
On September 2, 2020, the Court granted in part and denied in part Defendant United

17

States of America’s motion to dismiss. (ECF No. 33.) This action now proceeds only on

18

Plaintiff’s claim for failure to patrol. Accordingly, on September 3, 2020, the Court directed

19

Defendant to file an answer or other responsive pleading to Plaintiff’s first amended complaint.

20

(ECF No. 34.) On September 14, 2020, Plaintiff filed a motion for reconsideration of the Court’s

21

order granting in part and denying in part Defendant’s motion to dismiss. (ECF No. 35.)

22

In light of the pending motion for reconsideration, the Court granted Defendant’s request

23

for an extension of time to respond to the complaint. (ECF Nos. 36, 37.) The Court vacated the

24

deadline for Defendant to file a responsive pleading, which will be reset following resolution of

25

Plaintiff’s motion for reconsideration. (ECF No. 37.) Defendant timely filed their opposition to

26

Plaintiff’s motion for reconsideration, (ECF No. 38), and Plaintiff’s reply, if any, is due on or

27

before October 12, 2020.

28

Currently before the Court is Plaintiff’s motion for an order opening discovery, filed
1

1

October 5, 2020. (ECF No. 39.) Plaintiff notes that his previous request to open discovery was

2

denied pending resolution of Defendant’s motion to dismiss, and the undersigned ordered that the

3

Court would open discovery on any of Plaintiff’s remaining claims “once the pleadings are set.”

4

(Id. at 2; ECF No. 26, p. 18.) Plaintiff states that he will need a great deal of discovery to

5

adequately respond to any dispositive motions filed by Defendant in this case, and requests that

6

while waiting for the Court to adjudicate Plaintiff’s motion for reconsideration, discovery should

7

open at least with respect to Plaintiff’s failure to patrol claim. Plaintiff argues that if the Court

8

grants Plaintiff’s motion to reconsider dismissal of Plaintiff’s tower guard claim and permit that

9

claim to proceed, Plaintiff could, at that time, ask the Court to broaden its discovery order. (ECF

10
11
12

No. 39.)
Defendant has not had an opportunity to respond to the motion, but the Court finds a
response unnecessary. The motion is deemed submitted. Local Rule 230(l).

13

Plaintiff’s motion for discovery is premature. As a result of Plaintiff’s motion for

14

reconsideration, the Court vacated the deadline for Defendant to file a responsive pleading to the

15

complaint. As such, the pleadings are not set, and discovery remains inappropriate at this time.

16

Once the motion for reconsideration is resolved, the Court will reinstate the deadline for

17

Defendant to respond to the complaint. After a responsive pleading is filed, the Court will then

18

issue an order opening discovery. Finally, to the extent Plaintiff is concerned about responding to

19

future dispositive motions, the Court notes that the order opening discovery will also set the

20

deadlines for the filing of dispositive motions and will allow ample time for the parties to conduct

21

discovery before dispositive motions are due.

22
23
24
25
26

Accordingly, Plaintiff’s motion for order opening discovery, (ECF No. 39), is HEREBY
DENIED, without prejudice, as premature.
IT IS SO ORDERED.
Dated:

/s/ Barbara

October 8, 2020

A. McAuliffe

_

UNITED STATES MAGISTRATE JUDGE

27
28
2