Spence v. Stambaugh et al

Filing 81

ORDER signed by Magistrate Judge Allison Claire on 04/19/19 denying 77 Motion to Compel discovery and denying 75 Motion to Stay. Defendants Southward, Stambaugh and Voss shall within 21 days after the filing date of this order, file their answers to the second amended complaint. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GERALD SPENCE,

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No. 2:14-cv-1170 WBS AC P

Plaintiff,
ORDER
v.
STAMBAUGH, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with this civil rights

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action, in which plaintiff challenges his treatment when booked into the Sacramento County Main

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Jail on November 11, 2012.

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This action now proceeds on the Second Amended Complaint (SAC), ECF No. 47, on

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plaintiff’s excessive force claims (Claims 2 through 4) against defendants Southward, Stambaugh,

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Croley, Mrosinski, Ogle and Mundy, and on plaintiff’s failure to intervene claims (Claims 5 and

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6, in part) against defendants Mencias and Voss respectively. See ECF No. 61 (findings and

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recommendations), ECF No. 79 (order adopting findings and recommendations).

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Defendants Southward, Stambaugh and Voss have appeared in this action; however,

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defendants Croley, Mrosinski, Ogle, Mundy and Mencias have not yet been served process.

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Plaintiff has submitted the information necessary to serve process on these defendants, ECF No.

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67; by separate order filed contemporaneously herewith, the court directs the U.S. Marshal to
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seek waivers of service from these defendants or, alternatively, to personally serve them.

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Meanwhile, defendants Southward, Stambaugh and Voss will be directed to file answers to the

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SAC.

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The deadlines for discovery and dispositive motions were previously stayed until further

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order of this court, although the parties were permitted to continue conducting informal

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discovery. See ECF No. 61 at 7. The deadlines for discovery and dispositive motions will

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continue to be stayed until all defendants have been served process or service has proven

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unfeasible. For this reason, and due to the expansion of this case, plaintiff’s pending motion to

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compel discovery, ECF No. 77, will be denied without prejudice; plaintiff may renew the motion,

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if necessary, after this case has been rescheduled.
Finally, plaintiff’s motion to stay this action pending receipt of his legal materials, ECF

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No. 75, will be denied as moot. Plaintiff indicated in another of his actions pending in this court,

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in which he filed the same motion to stay, that the matter was resolved. See Spence v Kaur, Case

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No. 2:16-cv-1828 TLN KJN P, ECF Nos. 43, 47. Moreover, in the absence of deadlines, there is

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no basis for staying this action.

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Accordingly, for the foregoing reasons, IT IS HEREBY ORDERED that:

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1. Defendants Southward, Stambaugh and Voss shall, within twenty-one (21) days after

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the filing date of this order, file their answers to the SAC;

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2. Plaintiff’s motion to compel discovery, ECF No. 77, is denied without prejudice; and

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3. Plaintiff’s motion to stay, ECF No. 75, is denied as moot.

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IT IS SO ORDERED.

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DATED: April 19, 2019

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