Opinion
2:19-cv-02152-TLN-CKD P
09-28-2022
JAMES ALEXANDER RIALS, Plaintiff, v. J. LOZANO, et al., Defendants.
ORDER
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE.
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff has filed a request for three signed subpoena forms pursuant to Rule 45(a)(3) of the Federal Rules of Civil Procedure. ECF No. 88. In his request, plaintiff does not identify the information or the parties he seeks to subpoena. Federal Rule of Civil Procedure 45(a)(3) requires that “[t]he clerk must issue a subpoena, signed but otherwise in blank, to a party who requests it.” Therefore, the Clerk of the Court will be directed to send plaintiff three blank subpoena forms as requested.
On August 10, 2022, plaintiff filed a motion to compel interrogatory responses from defendants because he has not received a response. ECF No. 92. Attached to the motion is the interrogatories propounded on defendants on or about December 28, 2021. ECF No. 92 at 4-10. Defendant Bowen filed an opposition to plaintiff's motion to compel indicating that all merits-based discovery in this case was stayed on February 2, 2022 and that plaintiff has not attempted to meet and confer since discovery was re-opened on July 19, 2022. ECF No. 94. Plaintiff did not file a reply to defendant's opposition to his motion to compel and the time to do so has expired.
Plaintiffs motion to compel is premature because the court granted defendants' joint motion to stay merits-based discovery on February 2, 2022 pending a final ruling on defendants' motions for summary judgment based on the exhaustion of administrative remedies. ECF No. 65. On July 19, 2022, the district judge granted the motion for summary judgment filed by defendants Lozano and Footman and granted defendant Bowen's motion for summary judgment, in part. ECF No. 85. This case is now proceeding on a single Eighth Amendment sexual abuse claim against defendant Bowen. ECF No. 85.
An amended discovery and scheduling order was issued on July 22, 2022 resetting the discovery cut-off date as December 1, 2022. ECF No. 86. Pursuant to the Amended Discovery and Scheduling Order, all discovery requests must be served at least 60 days before the discovery cut-off and any necessary motions to compel are required to be filed by December 1, 2022. ECF No. 86 at 6. At the time that plaintiff filed his present motion to compel, discovery on the merits had just been re-opened and defendant Bowen had not been provided sufficient time to respond to any discovery requests propounded by plaintiff. Therefore, plaintiff's motion to compel is denied as premature.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's request for subpoenas (ECF No. 88) is granted. The Clerk of Court is directed to send plaintiff three blank subpoena forms.
2. Plaintiff's motion to compel (ECF No. 92) is denied as premature.