Todd v. Briesenick et al

Filing 7

ORDER signed by Magistrate Judge Kendall J. Newman on 6/10/2013 ORDERING 6 Motion to allow late discovery is DENIED; any discovery in this matter is STAYED pending final resolution of the findings and recommendations by the district judge. (Waggoner, D)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DEREK TODD,

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Plaintiff,

No. 2:13-cv-0753 KJM KJN PS

vs.
KEIRITH BRIESENICK, et al.

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Defendants.

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ORDER
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Plaintiff Derek Todd, who is proceeding without counsel and in forma pauperis,

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filed this action on April 18, 2013, alleging claims under 42 U.S.C. §§ 1983 and 1985 against

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defendants Lisa Rapalyea, several officers of the Davis Police Department, and several attorneys

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at the Yolo County District Attorney’s Office, based on their alleged conspiracy to violate

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plaintiff’s and his son’s rights under the Equal Protection Clause of the Fourteenth Amendment

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to the United States Constitution. (ECF No. 1.)1

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On May 16, 2013, the court issued findings and recommendations recommending

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that the action be dismissed with prejudice. (ECF No. 4.) For the reasons outlined in those

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findings and recommendations, the court found that the action is largely duplicative of a prior

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action, at least with respect to some defendants and the nexus of operative facts, and that in any

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This case was referred to the undersigned pursuant to E.D. Cal. L.R. 302(c)(21) and 28
U.S.C. § 636(b)(1).

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event plaintiff’s complaint failed to state a claim on which relief may be granted. (Id.)

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Thereafter, on May 22, 2013, plaintiff filed objections to the findings and recommendations,

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which remain pending before the district judge. (ECF No. 5.)

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Presently pending before the court is plaintiff’s “motion to allow late discovery.”

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(ECF No. 6.) It is not exactly clear what form of discovery plaintiff seeks, but plaintiff appears

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to request leave to conduct some type of discovery regarding additional California Penal Code

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violations that defendant Briesenick and others allegedly committed.

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Although plaintiff styles the request as one for late discovery, it is technically a

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request for early discovery, because parties generally may not commence formal discovery until

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after the parties have conducted a discovery conference under Federal Rule of Civil Procedure

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26(f), absent a court order upon a showing of good cause. Fed. R. Civ. P. 26(d)(1); Semitool,

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Inc. v. Tokyo Electron America, Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002). Here, because the

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court has recommended dismissal of the case and did not order the complaint to be served on

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defendants, no Rule 26(f) conference has taken place. Furthermore, in light of the court’s

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findings that the present action is duplicative and/or fails to state a claim on which relief may be

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granted, good cause does not exist to permit early discovery. Moreover, the proposed discovery

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regarding alleged California Penal Code violations appears to be irrelevant, because plaintiff

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would have no standing as a private plaintiff to prosecute alleged criminal violations against any

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of the defendants.

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For the foregoing reasons, IT IS HEREBY ORDERED that:

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1. Plaintiff’s “motion to allow late discovery” (ECF No. 6) is DENIED.

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2. Any discovery in this matter is stayed pending final resolution of the findings

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and recommendations by the district judge.
IT IS SO ORDERED.
DATED: June 10, 2013

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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