Filed: Jun. 10, 2013
Latest Update: Jun. 10, 2013
Summary: ORDER GRANTING PLAINTIFF'S MOTION (Doc. 90.) ORDER STRIKING DEFENDANT'S ANSWER AND MOTION TO DISMISS (Docs. 87, 88.) ORDER ADVISING PARTIES NOT TO PURSUE DISCOVERY ON BEHALF OF DEFENDANTS ALVAREZ AND SZALAI AT THIS STAGE OF THE PROCEEDINGS GARY S. AUSTIN, Magistrate Judge. I. BACKGROUND Louis Branch ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with this civil action. Plaintiff filed the Complaint commencing this action on July 7, 2008. (Doc. 1.) This case now pr
Summary: ORDER GRANTING PLAINTIFF'S MOTION (Doc. 90.) ORDER STRIKING DEFENDANT'S ANSWER AND MOTION TO DISMISS (Docs. 87, 88.) ORDER ADVISING PARTIES NOT TO PURSUE DISCOVERY ON BEHALF OF DEFENDANTS ALVAREZ AND SZALAI AT THIS STAGE OF THE PROCEEDINGS GARY S. AUSTIN, Magistrate Judge. I. BACKGROUND Louis Branch ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with this civil action. Plaintiff filed the Complaint commencing this action on July 7, 2008. (Doc. 1.) This case now pro..
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ORDER GRANTING PLAINTIFF'S MOTION (Doc. 90.)
ORDER STRIKING DEFENDANT'S ANSWER AND MOTION TO DISMISS (Docs. 87, 88.)
ORDER ADVISING PARTIES NOT TO PURSUE DISCOVERY ON BEHALF OF DEFENDANTS ALVAREZ AND SZALAI AT THIS STAGE OF THE PROCEEDINGS
GARY S. AUSTIN, Magistrate Judge.
I. BACKGROUND
Louis Branch ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with this civil action. Plaintiff filed the Complaint commencing this action on July 7, 2008. (Doc. 1.) This case now proceeds on the Second Amended Complaint filed by Plaintiff on August 25, 2010, against defendant Umphenour and Does 1 and 2, for failure to protect Plaintiff in violation of the Eighth Amendment, and against defendant Umphenour for retaliation in violation of the First Amendment, in their individual capacities, for money damages only.1 (Doc. 26.)
On October 30, 2012, the court issued a Scheduling Order commencing discovery and establishing deadlines in this action, including a deadline to amend pleadings of April 30, 2013, and a discovery cut-off date of June 30, 2013. (Doc. 73.) On April 15, 2013, the court issued an order extending the deadline to amend pleadings to May 31, 2013. (Doc. 84.) On April 22, 2013, Plaintiff filed a motion to amend the complaint and lodged a proposed third amended complaint. (Docs. 86, 87.) Plaintiff's motion to amend is currently pending.
On May 6, 2013, defendant Umphenour ("Defendant") filed an Answer to the third amended complaint and a motion to dismiss the third amended complaint in part. (Docs. 87, 88.) On June 5, 2013, Plaintiff filed a motion to stay Defendant's Answer, motion to dismiss, and discovery requests for defendants Alvarez and Szalai. (Doc. 90.)
Plaintiff's motion is now before the court.
II. PLAINTIFF'S MOTION
Plaintiff argues that Defendant's Answer and motion to dismiss were prematurely filed because the court has not ruled on Plaintiff's motion to file the third amended complaint. Plaintiff also argues that Defendant's discovery requests on behalf of defendants Alvarez and Szalai are premature and inappropriate. Plaintiff asserts that on May 10, 2013, Defendant served interrogatories, a request for admissions, and a request for production of documents upon Plaintiff on behalf of unserved defendants Alvarez and Szalai.
Plaintiff correctly argues that Defendant's Answer, motion to dismiss, and discovery requests are premature and inappropriate. Because the court has not ruled on Plaintiff's motion to amend, and the proposed third amended complaint has not been filed, this case currently proceeds on the Second Amended Complaint filed on August 25, 2010, against defendant Umphenour and Does 1 and 2. Defendant's discovery requests on behalf of defendants Alvarez and Szalai are likewise inappropriate, because those defendants have not been added to Plaintiff's complaint, served with process, or appeared in this action.
III. CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that:
1. Plaintiff's motion, filed on June 5, 2013, is GRANTED;
2. Defendant's Answer to the third amended complaint, filed on May 6, 2013, is STRICKEN from the record;
3. Defendant's motion to dismiss, filed on May 6, 2013, is STRICKEN from the record; and
4. The parties shall not pursue discovery on behalf of defendants Alvarez and Szalai at this stage of the proceedings, and Plaintiff may disregard any pending discovery requests which have been served upon him by Defendant on behalf of defendants Alvarez and Szalai.
IT IS SO ORDERED.
